U.S. DISTRICT COURT STRIKES A BLOW FOR INCLUSIVE PRESIDENTIAL GENERAL ELECTION DEBATES

On February 1, U.S. District Court Judge Tanya Chutkan, an Obama appointee, issued a ruling in Level the Playing Field v Federal Election Commission, District of Columbia, 1:15cv-1397. The case was filed by Peter Ackerman (founder of Americans Elect), Gary Johnson, and Jill Stein in 2015, and argues that the Federal Election Commission should be ordered to investigate whether the Commission on Presidential Debates is truly nonpartisan.

The ruling sides with the plaintiffs, and scolds the FEC for not having carefully looked at the evidence that the Commission is not really nonpartisan. It orders the FEC to examine the evidence and respond to it by April 3. The original court order required the FEC to do that by March 3, but then the FEC asked for more time, and the judge agreed.

Federal law and regulations require that debate sponsors who accept corporate contributions (to pay for the debates) must be nonpartisan, not bipartisan.

Examples of evidence before the FEC includes statements by members of the Debates Commission. Commissioner Alan Simpson once said, "Democrats and Republicans on the commission are interested in the American people finding out more about the two major candidates – not about independent candidates who mess things up."

Commissioner John Lewis once said, "There’s no question that the two major parties have absolute control of the presidential debate process."

Commissioner Newt Minow once said, "The responsibility for the debates should rest with the political system – with the Democratic and Republican Parties."

Other evidence includes information about the contributions made by members of the Commission to Republican and Democratic candidates, and to those parties themselves, and about their partisan affiliations and candidate endorsements.

Judge Chutkan’s order is not the first time that a U.S. District Court has ordered the FEC to investigate the Commission on Presidential Debates. In October 2000, the Commission provided photographs of Ralph Nader, Harry Browne, John Hagelin, Pat Buchanan, and Howard Phillips to all the security personnel at one of the presidential debates. The Commission ordered the officers to memorize the faces of these candidates, and if any of them was spotted trying to enter the audience, to remove them. They were all minor party presidential candidates and the Commission was afraid one or more of them might have a ticket to sit in the audience. But the Commission did not take any steps to guard against any other types of potential "disorderly" persons.

The evidence from that incident persuaded U.S. District Court Judge Henry H. Kennedy, Jr., a Clinton appointee, to order the FEC to investigate the Commission. That order was issued on August 12, 2004. But the FEC appealed, and the U.S. Court of Appeals reversed the order on June 10, 2005. Hagelin v FEC, 411 F.3d 237.

So far, the FEC has not appealed the recent opinion. It is known that two of the six FEC Commissioners were already in favor of investigating the Commission, although one of them recently resigned from the FEC. It is also known that some of the Debate Commissioners themselves believe that the Commission ought to ease the rules for inclusion in the debates.

There have been many other lawsuits to force the Commission to reform itself. Lenora Fulani, New Alliance Party presidential nominee, filed lawsuits against the IRS in both 1988 and 1992 to force the IRS to revoke the tax-exempt status of the Commission. Those lawsuits lost. One had been filed in New York and one had been filed in the District of Columbia. In 1996, Ross Perot sued the FEC and asked that it act, but that lawsuit lost, and the U.S. Supreme Court refused to hear it.

In 2000, Ralph Nader and some of his supporters sued the FEC in the First Circuit (Boston). Pat Buchanan sued in the D.C. Circuit, and the Committee for a Unified Independent Party did so in New York. All of these cases lost.

In 2012, Gary Johnson sued the Commission for failing to recognize polls that showed him at more than 15%. These were polls that only asked respondents "if the candidates were President Obama and Gary Johnson, whom would you vote for?" The Commission has never had any rules about which candidates must be mentioned in the polls they depend on. But that case failed because it had been filed in the wrong venue, and Johnson didn’t re-file it.

On February 9, New Hampshire Representative Caleb Q. Dyer revealed that he had changed his registration from "Republican" to "Libertarian." He is in his first term and lives in Pelham. He is age 20. The Libertarian Party now has two state legislators. The other is Senator Laura Ebke of Nebraska.

On February 1, the Eleventh Circuit issued an opinion in Green Party of Georgia v Kemp, 16-11689. The opinion upholds last year’s decision of the U.S. District Court, that Georgia cannot require 49,336 signatures for an independent presidential candidate, or the presidential nominee of an unqualified party. The plaintiffs are the Green Party and the Constitution Party.

The judges were Charles R. Wilson, a Clinton appointee; Jill A. Pryor, an Obama appointee; and visiting U.S. District Court Judge Harvey Bartle, a Bush Sr., appointee in Pennsylvania.

On February 22, the state asked for a rehearing. The rehearing request stresses that the Libertarian Party has been on the ballot for President in Georgia in all elections starting in 1988. However, the state’s brief does not say that when the Libertarian Party petitioned in 1988, the requirement was 25,759. The party hasn’t had to petition since, because it always polls enough votes to stay on the ballot, for all statewide offices (but not district offices).

The state’s rehearing brief also maintains that the two plaintiff parties lack a modicum of voter support, yet ignores the fact that the Green Party polled 1,457,045 votes for President last year, slightly more than 1% of the national total.

Assuming the decision stands, it will have important consequences for Florida. Florida is also in the Eleventh Circuit, so the decision is binding on Florida. On August 31, 2016, the Florida Secretary of State re-interpreted his state’s law, and ruled that all parties, qualified or not, must submit a petition of 119,316 valid signatures by July 15, unless they are recognized by the Federal Election Commission as national committees. If Georgia can’t require 50,000 signatures for president, it is obvious that Florida can’t require 119,316 for parties that aren’t recognized as national committees by the FEC.

FEC designation of "national committee" status cannot be obtained by a new party, or a party that has not had a fair number of congressional candidates in previous elections. The FEC only awards "national committee" status to parties that have already been in existence for several elections. Furthermore, the FEC standards relate to campaign finance, not voter support for a party.

On February 1, the State Court of Appeals (the highest state court) construed the election law to mean that independent candidates do not need to file any paperwork before the petition itself is due, in August of election years. Lamone v Schlakman, 2016-50. The lower state court had come to the opposite conclusion, and had thought that independent candidates must file a declaration of candidacy in February.

Texas continues to be the only state that requires an independent candidate to file a declaration of candidacy in the first six weeks of an election year. Last year a U.S. District Court had struck down West Virginia’s requirement for a February declaration of candidacy for independent candidates.

Arizona: on February 23, the State Senate unanimously passed SB 1307, which moves the deadline for parties to choose presidential elector candidates from late May to late August. The existing May deadline has been so early, relative to other states, that both the Libertarian Party (in 1996) and the Green Party (in 2016) had trouble with this deadline.

Arkansas: on February 22, the legislature passed HB 1532, which moves the deadline for a newly-qualifying party to nominate candidates (other than President) from November of the year before the election, to May of election years.

New Mexico: on February 10, the House Local Government, Elections, Land Grants & Cultural Affairs Committee passed HB 226, which substantially lowers the number of signatures for independent candidates. Existing law requires 3% of the last gubernatorial vote, currently 15,388 signatures. The bill requires a number of signatures that is the average of what is needed for candidates to get on a primary ballot. That would vary office-by-office, but the statewide signatures would be approximately 4,000. The bill also lowers the number of signatures needed for the nominees of small qualified parties.

Oklahoma: on February 22, the Senate Rules Committee unanimoussly passed SB 145. It eases ballot access for independent presidential candidates and the presidential nominees of unqualified parties. Current law requires 3% of the last presidential vote, which in 2016 was 40,047. The bill provides a choice of either paying a filing fee of $17,500, or submitting a petition of 3% of the last gubernatorial vote, which is currently 24,745.

South Dakota: on February 23, Governor Dennis Daugaard signed HB 1037. It lets an independent presidential candidate list a stand-in vice-presidential candidate on the petition. Later, the stand-in may resign and the presidential candidate can replace him or her. The bill does the same for independent gubernatorial candidates, relative to Lieutenant Governor. In South Dakota, and many other states, they run as a team. This part of the bill is caused by the state having lost a lawsuit in 2014.

The bill also moves the petition deadline for a newly-qualifying party from March to July, although parties that use the later deadline may not run anyone that first year on the ballot for any offices except President and statewide state constitutional offices. The Libertarian and Constitution Parties have a lawsuit pending in U.S. District Court. If it wins, then parties that use the July deadline could nominate for all offices.

As of February 27, the Ohio Supreme Court still hasn’t made a final ruling as to whether the Libertarian Party is on the Ohio ballot for 2018. The Court did rule against the party on January 20, but on January 24 the party asked for reconsideration, and the reconsideration request has not yet received a ruling. The case is State ex rel Fockler v Husted, 2016-1863.

The issue is how to construe section 3517.01, which defines "political party" as: "Any group of voters which, at the last preceding regular state election, polled for its candidate for President or Governor at least 3% of the entire vote cast for such office", or which filed a petition of 1% of the last vote cast.

The Libertarian Party went off the ballot in Ohio in November 2014, because it didn’t poll enough votes for Governor, because it had no candidate for Governor on the ballot. The party meant to run a candidate for Governor in 2014, but he was kept off the primary ballot, so could not run, and could not be replaced. The party did not do a new petition for party status for 2016; instead it chose to run Gary Johnson as an independent, because the independent petition is so much easier than the party petition.

Ohio independent candidate petitions all bear the names of a committee of five individuals who are responsible for the petition. The five individuals who were on Gary Johnson’s independent 2016 presidential petition filed the Fockler lawsuit. They are the "group of voters" referred to in the definition. They already exercised an important function in August 2016, when they informed the Secretary of State that the presidential candidate listed on their petition, who was a stand-in, had resigned and should be replaced by Gary Johnson. The Secretary of State accepted their request.

Gary Johnson got 3.17% for President in Ohio last year, so the petition’s sponsors argue that this showing creates a new qualified party. They have advised the Secretary of State that the name of the new party is the Libertarian Party. Officers of the state Libertarian Party have assented to this.

The state says that the definition, which has been in the law since 1908, doesn’t really mean "a group of voters"; it means a previously qualified party. However, twice, the law has been construed to mean that when a group that wasn’t already a qualified party meets the vote test, that does create a new party. The two prior instances were the Progressive Party in 1912, and the Reform Party in 1996.

The state argues that the federal ballot access victory in 2006, Libertarian Party v Blackwell, which struck down the old November petition deadline for a new party, implicitly struck down all parts of the Ohio "political party" definition. But there is no sentence in that decision that says that. Furthermore, the legislature revised the law in 2013 to take account of the 2006 decision, and the state did not delete the "group of voters" part of the definition The 2013 bill even amended that sentence, lowering 5% to 3%. One would think, if the legislature felt the "group of voters" language had been declared unconstitutional, it would have deleted it.

The state says that there are two definitions of "political party" in the code, and the other part doesn’t have the "group of voters" language. That is true, but irrelevant. That other definition is in 3501.01.

On January 30, Ohio Citizens for Honesty, Integrity and Openness in Government filed an amicus brief on the side of the Libertarians. The amicus stresses Ohio precedents that say courts cannot ignore words in a statute, and cannot re-write statutes to eliminate some words and add others.

The amicus also reminds the Ohio Supreme Court that it has said before that election laws are to be construed liberally, to enhance voting rights. Ohio Citizens for Honesty filed this amicus brief on its own accord, without any Libertarian having reached out to the group to solicit the amicus. The group has existed since 2001 and is incorporated.

On January 31, President Donald Trump chose Judge Neil Gorsuch of the Tenth Circuit, and a resident of Colorado, for the U.S. Supreme Court seat that is vacant due to the February 2016 death of Justice Antonin Scalia.

Gorsuch was part of a panel that ruled favorably for independent candidates in 2014. Colorado law said individuals could give twice as much to a Republican or a Democratic candidate running for the legislature, as to any other candidate. The U.S. District Court upheld the law, but the Tenth Circuit, including Judge Gorsuch, struck it down. Riddle v Hickenlooper, 742 F.3d 922.

On February 21, the U.S. Supreme Court refused to hear Sarvis v Alcorn, 16-781. This Libertarian Party lawsuit challenged a Virginia law that says nominees of qualified parties always enjoy the top spot on general election ballots. Virginia uses a random method to determine whether the Democrat or the Republican should be listed first, but always puts other candidates below both of them. The lower courts had upheld the law, writing that the state has an interest in strengthening the two major parties, and also that voters might be confused if every candidate had an equal chance to be listed first. However, one third of states do give every candidate an equal chance to be listed first.

The last B.A.N. listed 11 states with bills to improve ballot access. Since then, more have been introduced:

Georgia: State Senator Josh McKoon (R-Columbus) has SB 112. It eliminates mandatory candidate petitions. Instead, independent candidates and the nominees of new parties would only need to pay the filing fee (under existing law, besides the required petition, such candidates also must pay the filing fee).

Illinois: Representative Allen Skillicorn (R-East Dundee) has HB 762, which lowers the vote test for qualifying as a political party from 5% of the last vote cast, to 2%. It also lowers the petitions for independent candidates and the nominees of unqualified parties, so they would approximately equal the number of signatures primary candidates need.

Kansas: The House Elections Committee has introduced HB 2224. It lowers the petition for a new party from 2% of the last gubernatorial vote, to 1%.

Maine: Representative Louis Luchini (D-Ellsworth) has LD 295. It says a party remains on the ballot if it polls 5% for President or Governor. Currently, parties only remain on the ballot if they have at least 10,000 registered voters, all of whom cast a ballot in the general election. The bill thus creates two methods for a party to remain qualified.

Maryland: Representative David Moon (D-Silver Spring) has introduced HB 707. It lowers the number of registered voters for a party to remain on the ballot, from 1% of the state total (about 40,000) to exactly 10,000.

Tennessee: Senator Mae Beavers has introduced SB 770, and Representative Bud Hulsey has introduced HB 662. They are identical and lower the petition for a new party from 2.5% of the last gubernatorial vote (about 40,000 signatures) to exactly 5,000.

West Virginia: Delegate Pat McGeehan (R-Chester) has introduced HB 2102, to make it easier for a party to remain on the ballot. Current law requires it to poll 1% for Governor. The bill changes that to any statewide state office. Also a party would remain on if it has at least 5,000 registered voters.

Nevada: Assemblyman Ira Hansen has introduced AB 226. It moves the deadline for a new party petition from June to May.

New York: Assemblyman Michael Cusick has introduced A5312. It moves the petition deadline for independent candidates, and the nominees of unqualified parties, from August to May. The bill has many other provisions that make it easier for voters to vote, and is receiving much good publicity. No general media has mentioned that it makes ballot access worse.

Utah: SB 13, mentioned in the last B.A.N., moves the deadline for a new party petition from February to November 30 of the year before the election. Unfortunately this bill passed the legislature on February 6, although the Governor hasn’t signed it yet.

Indiana: The last B.A.N. reported that State Senator Greg Walker (R-Columbus) had introduced SB 418, to lower the number of signatures for independent candidates and the nominees of unqualified parties, from approximately 40,000 signatures, to exactly 4,500 signatures.

The bill passed the Elections Committee on February 6. But on February 20, Walker withdrew the bill because he had not yet received enough support from his party to guarantee that the bill would pass the Senate. He will introduce the bill again early in 2018 after having done the work needed for success.

New Hampshire: HB 384, would would have set up a special committee to study the state’s ballot access laws (which are very faulty) was defeated in the House Elections Committee on February 14.

North Dakota: HB 1417, which would have made it easier for a party to remain on the ballot, and also made it easier for small qualified parties to run candidates for the legislature, was defeated on the House floor on February 21 by 23-69.

Proponents of top-two systems frequently say that a top-two system reduces polarization in state legislatures. However, recent data comparing the extent to which each state’s legislature is polarized shows that California still has the nation’s most polarized legislature, and that Washington has the fifth most polarized legislature. Those two states are the only states with top-two systems. The data is from 2015-2016 legislative sessions, and was compiled by Political Scientists Boris Shor and Nolan McCarty. See americanlegislatures.com/2016/11/08/updated-polarization-plot-for-2015-2016.

"Drop-off", in the study of elections, means the share of voters who cast a ballot but don’t complete the ballot. For U.S. Senate, in November 2016, the California drop-off was 16.20%. In other words, almost one-sixth of the voters who cast a ballot didn’t bother to vote for U.S. Senate, which was the second item on the ballot, underneath president.

This is because the ballot forced voters to either vote for one of two Democrats, or not vote at all. This limited choice is the result of the top-two system. The California drop-off for U.S. Senate, in presidential years, in the 75 years before the top-two system, averaged 4.46%.

The chart below shows the last time a minor party or independent candidate in each state won a lawsuit that said a ballot access law is unconstitutional. The June 1, 2009 B.A.N. carried a similar chart. Although Mississippi has never had a ballot access law declared unconstitutional, it did have its 10,000-signature petition requirement struck down in 1966 because when the legislature passed it, the state did not get approval from the U.S. Justice Department. That leaves New Hampshire as the only state that has never suffered a court loss over a ballot access law for minor party and independent candidates.

State	Year	Case Name and Holding
Ala.	2016	Hall v Merrill: 3% petition for an indp. candidate in special U.S. House election is too difficult
Alas.	1990	Sykes v State: independent petition deadline can’t be earlier than date of primary
Ariz.	2016	Az. Green Party v Reagan: June deadline for party to choose pres elector candidates is too early
Ark.	2016	Libt Pty v Martin: requiring new party to choose nominees a year before election is impermissible
Calif.	2012	Justice Committee v Bowen: January deadline for new party to qualify is too early
Colo.	2001	Campbell v Davidson: state can’t require a candidate for Congress to be a registered voter
Conn.	2016	Libt Pty v Merrill: ban on out-of-state circulators is impermissible
Del.	1993	Warren v Harper: state can’t require petition signers to add Social Security Number to petition
D.C.	2012	Libt Pty v Danzansky: ban on out-of-district circulators is impermissible
Fla.	1996	Libt Pty v Morthan: minor party must be allowed to use a stand-in on presidential petition
Ga.	2017	Green Pty of Ga v Kemp: 1% (of registered voters) petition for president is too high
Hi.	2013	Justice Party v Nago: February deadline for new party (for president) is too early
Ida.	2010	Daien v Ysursa: state can’t require more sigs for indp pres candidate than for other indp candidate
Ill.	2016	Libt Pty v Scholz: state can’t require new party to run full slate of candidates
Ind.	1990	Paul v: State Election Board: state can’t ban write-in space on ballots
Iowa	1992	Oviatt v Baxter: can’t require more signatures for office in part of state than for statewide office
Kan.	2002	Natural Law Party v Thornburgh: must let party have two words in its name
Ky.	1991	Libertarian Party v Ehrler: February deadline for new party candidate petitions is too early
La.	1979	Socialist Workers Party v Hardy: oath that candidate is not a subversive person is unconstitutional
Me.	2016	Libt Pty v Dunlap: Dec. (of year before election) deadline for new party is too early
Md.	2003	Maryland Green Party v Bd Elec: state can’t require qualified party nominees to submit a petition
Mass.	1985	Serrette v Connolly: May deadline for independent candidates is too early
Mich.	2014	Moore v Johnson: state can’t require circulators to be registered voters
Minn.	2004	Candidacy of Independence v Kiffmeyer: state can’t require minimum number of votes in primary
Miss.	– – –	never
Mo.	2016	Consti Pty v St. Louis Co: special elections can’t be limited to just the two largest parties
Mt.	2012	Kelly v McCullough: March petition deadline for independent candidate is too early
Neb.	1984	Libertarian Party v Beermann: petition for new party can’t say signers pledge to support that party
Nev.	1992	Fulani v Lau: June petition deadline for new parties, independent candidates, is too early
N.H.	– – –	never
N.J.	2007	Green Party v State: out-of-district circulators must be allowed to petition
N.M.	2013	Constitution Party v Duran: April is too early for new party petition
N.Y.	2004	Credico v NY: unqualified parties must be treated like qualified parties re: fusion
No.C.	2004	DeLaney v Bartlett: can’t require more signatures for a statewide indp. than for a new party
No.D.	1980	McLain v Meier: 15,000 signatures is too many for a new political party
Ohio	2008	Nader v Blackwell: state can’t bar out-of-state circulators
Okla.	1984	Libertarian Party v Elec. Bd: 90 day period is too short for new party petition
Ore.	2002	Freedom Soc. Party v Bradbury: party can use its own name even if is similar to other party name
Pa.	2016	Consti Pty v Cortes: court costs can’t be imposed on petitioning group that fail to qualify
R.I.	2009	Block v Mollis: petition for new party may circulate in an odd year
So.C.	2006	Working Families Party v Elec. Comm: new parties can’t be required to hold meetings in March
So.D.	2014	Myers v Gant: independent candidates may substitute new running mates
Tenn.	2014	Green Party v Hargett: if old parties can remain on for 4 years, new parties must also get 4 years
Tex.	1996	Texas Indp. Pty v Kirk: indp. petition need not carry each voter’s voter affidavit number
Utah	1984	LaRouche v Monson: April petition deadline too early for independent presidential petitions
Vt.	2013	Anderson v State: state can’t ban submitting photocopies of petitions instead of originals
Va.	2013	Libt Pty v Judd: ban on out-of-state circulators is unconstitutional
Wash.	2004	Libt Pty v Reed: 1% primary vote test invalid in open primary for qualified minor parties
W.V.	2016	Daly v Tennant: state can’t require February declaration of candidacy for independents
Wis.	2003	Frami v Ponto: out-of-state circulators must be allowed to petition
Wy.	1984	Blomquist v Thomsen: state must have procedure for new parties to get on ballot

Pennsylvania holds a special election for State House, 197^th district, on March 21. The district is in Philadelphia and is overwhelmingly Democratic. The registration in the district is 85% Democratic, 5% Republican, and 10% independent and minor party.

Cheri Honkala, the Green Party nominee for vice-president in 2012, lives in the district, and because of her lifetime of community involvement in that area, she is very well known. She declared her candidacy on January 28. She doesn’t need a petition because the Green Party has the legal status of a party that is on the ballot in special elections. However, when she turned in her candidacy paperwork, one form was missing (although election officials assured her that everything was complete). A few days later, when she learned about the missing sheet, she submitted it quickly, but it was beyond the deadline and she was removed from the ballot. She filed a lawsuit but it lost in Commonwealth Court. She has appealed to the State Supreme Court, which will rule any day now.

Meanwhile, on February 24, the Democratic nominee, Frederick Ramirez, was removed from the ballot after a trial court determined he does not really live in the district. The Democratic Party found a new nominee the same day, but the deadline for the party to substitute a new nominee has passed. The Democratic Party is about to file a lawsuit to get its nominee on the ballot anyway.

Honkala has raised $50,000 for her race, and in case she doesn’t get on the ballot, her campaign is educating voters on how to cast a write-in vote. As of February 27, though, the only candidate on the ballot is the Republican, Lucinda Little. The Republican Party is so weak in this district, it didn’t run anyone for this seat in November 2016.

No minor party has won a legislative seat in Pennsylvania since 1934, when the Socialist Party elected two Representatives from Berks County.

The Libertarian Party is petitioning in Ohio (in case the State Supreme Court doesn’t put it on the ballot) and in Tennessee. The Green Party is petitioning in Utah and Nebraska. The Constitution Party is starting in Hawaii.

On February 14, the Florida Secretary of State said the Independent Party is no longer ballot-qualified, because when it did its mandatory fiscal audit in 2014, it did not use a Certified Public Accountant. The party had nominated Evan McMullin for President in Florida in 2016, but the Secretary of State refused to honor that nomination because the Independent Party is not recognized by the Federal Election Commission has a "national committee". The last nominees the Independent Party had on the ballot in Florida were in 2012, when one of its State Senate nominees, Nancy Argenziano, got 42% of the vote in a two-person race, and the other, Kerry Babb, got 33% in another two-person race.

The Independent Party is free to re-file, and no petition is needed. However, it has lost all its registered members, and will need to start from zero.