IOWA REPEAL OF STRAIGHT-TICKET PASSES BOTH HOUSES

On March 23, the Iowa Senate passed HF 516, which eliminates the straight-ticket device. The bill had passed the House on March 10. It isn’t entirely through the legislature yet, because the Senate added an unrelated amendment to the bill and the House must now re-pass the bill. But it is extremely likely to pass, because it has unrelated provisions that the Republican majority in the legislature strongly supports.

A straight-ticket device lets voters vote for all the nominees of one party with a single mark at the top of the ballot. Voters who use it don’t need to look at the rest of the ballot.

Straight-ticket devices are harmful to independent candidates because there is no device for them. The devices also hurt minor party nominees. A candidate may have appeal, if only he or she can get the voter to notice the name on the ballot, but the device causes up to 50% of the voters to avoid looking at the ballot.

In 2010, when Wisconsin still had the device, Green Party nominee Ben Manski polled 31.1% of the vote for Assembly, 77^th district, in a race against both major parties. An analysis of the election returns showed that Manski actually won the election among the voters who did not use the straight-ticket device. But when straight-ticket voters weighed in, he lost. Wisconsin repealed the device in 2011.

States that still have the device are Alabama, Indiana, Kentucky, Oklahoma, Pennsylvania, South Carolina, Texas, and Utah.

Other states that have repealed it in the last 50 years are Delaware, Georgia, Illinois, Michigan, Missouri, New Hampshire, New Mexico, North Carolina, Rhode Island, South Dakota, and West Virginia.

The Michigan device still appears on the ballot, despite its repeal, because last year a U.S. District Court Judge ordered the state to leave it in place, because he believed the evidence will show that the device helps black voters. The trial to settle that will be held soon. The case is Michigan State A. Philip Randolph Institute v Johnson, e.d., 2:16cv-11844.

Chances are good that Texas will repeal the device this year. The bill to do that, HB 25, passed the House Elections Committee on March 13. Every Republican on the Committee voted for it, and the leadership of the legislature supports it and considers it a priority bill.

The Oklahoma Senate has passed two bills that improve ballot access. SB 145 passed 41-2 on March 8. It eliminates the mandatory petition for independent presidential candidates, and the presidential nominees of unqualified parties, if they pay a filing fee of $17,500.

Currently, Oklahoma and New Mexico are the only states that require an independent presidential candidate to submit a petition greater than 2% of the last vote cast. They both require a petition of 3%.

Under SB 145, candidates who don’t pay that very large fee can also get on the ballot if they submit a petition of 3% of the last gubernatorial vote. The current petition is 3% of the last presidential vote, which is more difficult. In 2016, there was a significant difference between the two standards: 24,745 versus 40,047.

On March 14, the Senate passed SB 350 by a vote of 41-3. It makes it easier for a party to remain on the ballot.

Current law requires it to poll 2.5% for the office at the top of the ticket, every two years (president/governor). The bill changes that to 2.5% for any statewide office, at either of the last two elections.

It is likely that both bills will pass the House, because in the last decade, the House has been friendlier to ballot access reform than the Senate. Both "no" votes for SB 145, and two of the three "no" votes for SB 350, were cast by Democrats.

On March 9, the Maryland House passed HB 529. It lowers the number of signatures for a statewide independent candidate from 1% of the number of registered voters (40,603 signatures for last year’s election) to exactly 10,000 signatures. The vote was unanimous. The bill is an omnibus election law bill and has many other unrelated provisions.

On March 28, the Tennessee House Local Government passed HB 662. It lowers the petition for newly-qualifying parties from 2.5% of the last gubernatorial vote, to exactly 5,000 signatures.

On March 17, the Government, Military and Veterans Affairs Committee passed LB 34 unanimously. It provides a second way for parties to remain on the ballot. Existing law requires a 5% vote for any statewide race, at either of the last two elecctions. The bill adds a second option, that a party retain at least 10,000 registered voters.

Maine: on March 13, LD 295 was introduced. It says a qualified party can remain on the ballot if it polled at least 5% for President or Governor at either of the last two elections. Currently the only way for a party to remain on the ballot is to have at least 10,000 registered members, and they must all go to the polls and vote (it doesn’t matter whom they vote for). If either or both of these bills are signed into law, the Libertarian Party (which polled over 5% for president last year) will be on the ballot.

Maine (2): the Secretary of State has arranged to have a bill introduced that will improve ballot access for minor parties. It says a newly-qualifying party may get on the ballot if it has at least 5,000 registrants by mid-June. The existing law requires the registrants to be obtained by December of the year before the election. However, that early deadline was enjoined by a U.S. District Court last year. The bill also says that all ballot-qualified parties with fewer than 50,000 registered voters will nominate by convention, rather than by primary.

North Carolina: Representative Phil Shepard (R-Jacksonville) is about to introduce a bill to substantially improve ballot access for newly-qualifying parties and independent candidates. It will lower the number of signatures for statewide independents and new parties to one-fourth of 1% of the last gubernatorial vote, which will be about 12,000 signatures. The existing requirement is 94,221. The bill will also let primary voters sign independent petitions and petitions for new parties.

Texas: on March 13, HB 3068 was introduced. It makes many improvements to the ballot access laws, both for minor parties and for independent candidates. It sets the statewide petitions at 10,000. Currently independent presidential candidates need 89,693 signatures; and minor parties and non-presidential independents need 47,086.

This year, bills to implement the National Popular Vote Plan have been introduced in the legislatures of twenty-two states. So far, such bills have made some headway in four states, and have already been defeated in six states.

Progress This Year

Alaska: on March 23, the House State Affairs Committee held a hearing on HB 5434. No vote has been taken yet.

Connecticut: on March 24, the House Government Administration and Elections Committee passed HB 5434 by a vote of 9-8.

Nevada: on March 21, the Assembly Legislative Operations & Elections Committee held a hearing on AB 274. No vote has been taken yet.

Oregon: on March 14, the House Rules Committee held a hearing on HB 2927. The Committee hasn’t voted yet.

Newspapers in all four states are filled with op-eds and letters to the editor, taking positions pro or con.

Losses This Year

Colorado: SB 99 lost in the Senate State, Veterans & Military Affairs Committee on February 15.

Maine: LD 156 lost in the Joint Veterans & Legal Affairs Committees on March 23.

Montana: HB 394 lost in the House Judiciary Committee on February 13.

New Hampshire: HB 447 lost in the House Election Law Committee on March 2.

New Mexico: SB 42 passed the Senate on February 20 by 26-16, but it lost in the House Local Government, Elections, Land Grants & Cultural Affairs Committee on March 9, by a 3-3 tie vote.

Virginia: HB 1482 lost in the House Privileges & Elections Committee on February 8.

On March 23, North Carolina amended the deadline for an independent candidate petition from mid-June to early April. This was a stunningly foolish move, because in 1980, when North Carolina also had an April petition deadline for independent candidates, a U.S. District Court declared that deadline to be unconstitutionally early. The case was Greaves v North Carolina State Board of Elections, 508 F Supp 78 (e.d.). Furthermore, in 1983, the U.S. Supreme Court struck down such early deadlines in Anderson v Celebrezze, 460 U.S. 780.

The North Carolina legislature didn’t even hold hearings on the idea. The deadline provision was inserted into a bill converting local judicial races from non-partisan to partisan races, HB 100. No publicity was given to the deadline change.

Other states in which April deadlines for independent candidates have been struck down for all office (not just President) are Alabama (1991), Arkansas (1977), Maine (1984), Missouri (1976), New Jersey (1997), and Pennsylvania (1984).

The bill that made the North Carolina change this year is HB 100. Governor Roy Cooper vetoed it on March 16, but the House overrode his veto on March 22 and the Senate did so on March 23. The Veto Message did not mention the deadline change, and only talked about judicial elections.

The bill also sets the petition requirement for independent candidates for local judicial races at 2% of the number of registered voters. The bill did not change the petition requirement for independent candidates for other district office, which is 4%. The lesser requirement for judicial candidates, although still severe, will raise the question of why independent candidates for the legislature, U.S. House, and county partisan executive posts need twice the requirement as judge candidates.

Montana: on March 22, two candidates who want to run in the special U.S. House election of May 25 filed a lawsuit against the procedures for them to get on the ballot. Breck v Stapleton, 9:17cv-36.

The election was called on March 1, the same day that Congressman Ryan Zinke resigned and created the vacancy. The Secretary of State then said that independent candidates, and the nominees of unqualified parties, can only run if they submit 14,268 valid signatures by March 3. Later the Secretary of State changed that to March 6.

It seems absurd that anyone could get that many signatures on such short notice, although the state will probably defend itself by arguing that a candidate should have started petitioning before the vacancy was created, because it was possible to guess that the vacancy might soon exist. The candidates are Thomas Breck, the nominee of the Green Party; and independent Steve Kelly. The case is assigned to Judge Brian Morris, an Obama appointee.

North Carolina: on February 23, the Green Party and the Constitution Party and an independent candidate filed a lawsuit over the state’s ballot access procedures. The lawsuit covers many points, especially the high number of signatures, the early deadlines, the fact that a party can’t get on the ballot in just part of the state (if it isn’t qualified statewide), and the fact that voters can’t register into an unqualified party. Leifert v North Carolina State Board of Elections, m.d., 1:17cv-147. The case is assigned to Judge William Osteen, a Bush Jr. appointee.

There are also plans to file ballot access lawsuits soon against Florida and Nebraska. The Nebraska lawsuit will challenge the 2016 law that raised the number of signatures for a statewide non-presidential independent from 4,000 to 10% of the number of registered voters (over 110,000 for statewide office).

The Florida lawsuit will challenge the 2016 decision of the Secretary of State to begin enforcing a previously-unenforced 2011 law, which says that a qualified party can’t place a presidential nominee on the ballot unless it either submits approximately 120,000 signatures, or unless the FEC recognizes it as a national committee. The plaintiff will be the Party for Socialism & Liberation, which was ballot-qualified in Florida in 2016, and still is. Notwithstanding its qualified status, the Secretary of State refused to print its presidential nominee, Gloria La Riva, on the 2016 ballot because PSL is not recognized by the FEC as a national committee.

As reported in the March 1 B.A.N., a U.S. District Court recently ordered the Federal Election Commission to carefully investigate evidence that the Commission on Presidential Debates is not nonpartisan, and that when it lets the Commission keep the 15% poll rule to determine who should be invited into the debates, it is discriminating against non-major party presidential candidates.

The FEC is not appealing that court decision, but on March 23, FEC staff attorneys prepared a draft opinion saying that the FEC has now looked carefully at the evidence against the Commission, but that the FEC still thinks the Commission is following the law. The FEC Commissioners won’t necessarily vote to adopt that draft, but it seems likely.

The draft says that the 15% rule would not have kept Theodore Roosevelt out of debates in 1912 (if there had been debates back then); Robert La Follette in 1924; Strom Thurmond in 1948; George Wallace in 1968; John Anderson in 1980; and Ross Perot in 1992.

The draft is wrong about Thurmond, Anderson, and Perot. Polls existed in 1948 and no poll ever showed Strom Thurmond anywhere close to 15%.

He was only on the ballot in 13 states, and those 13 states only held 12.8% of the national presidential vote that year. Thurmond could not have qualified under the other Commission on Presidential Debates rule, that candidates must be on the ballot in states containing a majority of the electoral college vote.

The draft is wrong about John Anderson. Even though he was invited into the first presidential debate, held on September 21, 1980 (which was sponsored by the League of Women Voters; the Commission didn’t exist back then), he did not qualify for any of the other three, because he was below 15% during early October. According to No Holding Back, by Jim Mason, the authoritative history of the Anderson campaign, Anderson hovered between 10% and 12% after the September 21 debate.

The draft is wrong about Ross Perot in 1992, because polls taken in early October did not show him any higher than 7%.

The draft also claims that polls nowadays are accurate, and says nothing about the fact that polls predicted that Hillary Clinton would win last year’s presidential election.

The draft says that polls show that Gary Johnson had 60% name recognition last year, and that his campaign spent only $5,000,000. But he did not have that name recognition in September, when the polls that determine debate inclusion are taken.

The Maine Supreme Court will hear In the Matter of Request for Opinion of the Justices, OJ-17-1, on April 13. The question is whether the Ranked Choice Voting initiative passed by the voters last year comports with the State Constitution. The Attorney General and the Secretary of State argue that the initiative can’t take effect without changing the Constitution. Many organizations have filed briefs, some in favor of Ranked Choice Voting, some against.

The Hawaii Democratic Party and the Montana Republican Party hope the U.S. Supreme Court will hear their lawsuits against open primary laws. Neither state asks voters to choose a party on voter registration forms. On primary day, any voter may pick any party’s primary ballot.

The two parties believe that some voters who are loyal to the other major party deliberately choose their primary ballots, but the two parties were unable to prove any harm in the courts below, so they lost.

The Supreme Court appears to be taking the cases seriously. The Court put the Hawaii case on its February 17 conference, but made no decision, so the case is still pending. On February 14 the Court asked Montana to respond to the Republican brief. That brief is due April 17.

In 2000 the Court said blanket primaries are unconstitutional, if any political party objects. Blanket primaries clearly let members of other parties help choose a party’s nominees. The issue isn’t so clear-cut with open primaries. One theory is that if a voter in an open primary state chooses a particular party’s primary ballot, then that voter has affiliated with that party, so there is no freedom of association problem.

Attorney Alan Woodruff of North Carolina has written a General Memo of Law to help attorneys who are doing ballot access cases. It has an analysis of when the Anderson/Burdick test is and is not applicable and an analysis of the standards for each of its requirements. Also included are analyses of the burdens of proof and standards relating to challenging specific statutes. To receive a copy, phone 828-676-1245, or e-mail him at alan.jd.llm@gmail.com, Woodruff has done ballot cases in New Mexico, Tennessee, and North Carolina.

Last year, a three-judge U.S. District Court ruled that Wisconsin’s legislative districting constitutes an unconstitutional partisan gerrymander. On March 24, the state asked the U.S. Supreme Court to reverse that decision. Because the case below was from a 3-judge U.S. District Court, the Supreme Court has no choice but to either affirm the lower court ruling summarily, or else hear it. Given the importance of the issue, it is very unlikely that the Court would just reaffirm the decision. The case is Gill v Whitford, 16-1161.

On March 24, U.S. District Court Judge John Z. Lee, an Obama appointee, struck down an Illinois 2013 law that makes it illegal for medical cannibis cultivation centers to make contributions to candidates. The lawsuit had been filed by two Libertarian candidates in the 2016 election, Claire Ball and Scott Schuleter. Ball v Madigan, n.d., 1:15cv-10441.

The state said there is a danger of corruption if marijuana producers may donate to candidates, because the business is regulated. However, the decision says that Illinois has no ban on riverboat casinos, or persons in liquor sales, and those businesses are also highly regulated.

HB 349 in the Utah legislature would have implemented ranked choice voting in all partisan elections in the state. It passed the House on March 3 by 59-12, but it lost in the Senate Government Operations Committee on March 6, by a tie vote of 3-3. It would not have taken effect until 2019. Proponents are optimistic that the same bill can pass next year.

A lawsuit is pending in Alabama state court over whether the state must hold a special election for U.S. Senate this year. U.S. Senator Jeff Sessions resigned his seat to become Attorney General, and the Governor set a special election for the remainder of his term, but scheduled it for November 2018. But the Alabama law says when a vacancy occurs, a special election must be held "forthwith" unless the term has only four months or less to run when the vacancy occurs. Zeigler v Bentley, Montgomery County Circuit Court, cv2017-900338. In the meantime, Luther Strange, the former Alabama Attorney General, is the Senator for that seat.

In defense of its action, state government attorneys say that due to the winning ballot access lawsuit Hall v Bennett last year, the state is obliged to ease the ballot access requirements for independent candidates when a special election is called. The state says it can’t have the special election in 2017 because it is being forced by that decision to give independents a long period of time to collect the needed 35,413 signatures.

The obvious rebuttal to that point is that the state is free to substantially reduce the number of signatures needed for an independent in a special election. The Zeigler case has a hearing April 12.

One of the differences between states, relating to how a group becomes a qualified party, is whether a state gives only one way to accomplish that, or whether the state gives such groups two alternate routes. The chart on page five shows that twenty states have more than one method for a group to become a qualified party. "Qualified party" means a party that has the same ease of placing its nominees on the general election ballot that the Republican and Democratic Parties enjoy.

State	Alternative #1	Alternative #2	Election Code
Alabama	Petition of 3% of last gub. vote	– –	17-6-22
Alaska	Candidate petition, then poll 3%	Registration drive, 3% last vote cast	15.60.010(25)
Arizona	Petition of 1.33% of last gub. vote	Candidate petition, then poll 5%	16-801A; 16-341
Arkansas	Petition of 10,000 signatures	Pres. Petition of 1,000 sigs; then poll 3%	7-1-101;7-2-302
California	Registration drive, .33%	Petition of 10% of last gub. vote	Elec. Code 5100
Colorado	Petition of 10,000 signatures	Candidate petition, then poll 5%	1-4-1303; 1-4-801
Connecticut	Candidate petition, then poll 1%	– –	9-453; 9-372
Delaware	Registration drive, .1%	– –	3002(b)
Florida	File list of party officers	– –	99.0955
Georgia	Petition of 1% of registered voters	Candidate petition, then poll apprx 1.5%	21-2-180; 21-2-170
Hawaii	Petition of .1% of registered voters	Pres candidate petition, then poll 10%	12-6; 11-62(d)
Idaho	Petition of 2% of last pres. Vote	– –	34-501
Illinois	Candidate petition, then poll 5%	– –	10 ILCS 5/10-2
Indiana	Candidate petition, then poll 2%	– –	3-8-7-25
Iowa	Candidate petition, then poll 2%	Hold meeting of 250, then poll 2%	43.2
Kansas	Petition of 2% of last gub. vote	– –	25-302
Kentucky	Candidate petition, then poll 2%	– –	118.325
Louisiana	Registration drive, 1,000 members	Pay presidential filing fee, then poll 5%	441; 464.B(1)
Maine	Registration drive, 5,000 members	Candidate petition, then poll 5%	494.5; 321.1
Maryland	Petition of 10,000 signatures	– –	4-102(b)(2) & 5-302(g)
Mass.	Registration drive, 1%	Candidate petition, then poll 3%	Ch. 53, sec 6 & 50-1
Michigan	Petition of 1% of last gub. vote	– –	168.685
Minnesota	Candidate petition, then poll 5%	Petition of 5% of last vote cast	200.02
Mississippi	Submit list of party officers	– –	23-1-81
Missouri	Petition of 10,000 signatures	– –	115.315 & 115.013
Montana	Petition of 5,000 signatures	Candidate petition, then poll approx. 3%	13-10-601
Nebraska	Petition of 1% of last gub. vote	– –	32-716
Nevada	Petition of 1% of last US House vote	– –	293.1715
N.Hamp.	Candidate petition, then poll 4%	Petition of 3% of last gub. vote	655:40; 652:11
N.Jersey	Candidate petitions, then poll 10%	– –	19:1-1
N. Mexico	Petition of one-half of 1% of last gub. vote	– –	1-7-2(C)
New York	Candidate petition, then poll 50,000	– –	1-104.3
No.Caro.	Petition of 2% of last gub. vote	– –	163-96
No.Dakota	Petition of 7,000	Pres. candidate petition, then poll 5%	16.1-11-30
Ohio	Petition of 1% of last vote cast	?????	3517.01
Oklahoma	Petition of 3% of last gub. vote	Pres. candidate petition, then poll 2.5%	1-109; 10-101.2
Oregon	Petition of 1.5% of last gub. vote	– –	249.735; 248.008
Pennsy.	Cand. Pet., then poll 1.2%, then reg. drive	– –	2872.2(a)
Rhode Is.	Petition of 5% of last gub. vote	Candidate petition, then poll 5%	17-1-2(f)
So.Caro.	Petition of 10,000	– –	7-9-10
So.Dakota	Petition of 2.5% of last gub. vote	– –	12-1-3(3)
Tennessee	Petition of 2.5% of last gub. vote	?????	2-104
Texas	Petition of 1% of last gub. vote	Hold meetings attendance of 1%	181.005, 181.006
Utah	Petition of 2,000	– –	20-3-2(g)
Vermont	Have town committees in 20 towns	Candidate petition, then poll 5%	2103(23), 2402(b)
Virginia	Candidate petition, then poll 10%	– –	24.2-101
Washingtn	Candidate petition, then poll 5%	– –	29.01.090
West Va.	Candidate petition, then poll 1%	– –	3-1-8
Wisconsin	Petition of 10,000	Candidate petition, then poll 1%	5.62
Wyoming	Petition of 2% of last US House vote	– –	22-1-102

On March 21, for the first time in at least 100 years, a write-in candidate was elected to the Pennsylvania legislature. He is Emilio Vazquez, a Democrat. The race in the 197^th district in Philadelphia featured a ballot with only the Republican nominee, Lucinda Little, listed. She received 198 votes, and placed third. Vazquez received 1,970 write-ins. Cheri Honkala, the Green Party nominee, received 282 write-ins. Both the Green Party and the Democratic Party lost lawsuits to be listed on the ballot. The original Democratic nominee was found by a court to not be a resident of the district, and another Democratic lawsuit to allow the party to make a late substitution did not win. Honkala was not on the ballot because one piece of paper with her declaration of candidacy was a day late.

Rocky De La Fuente announced on March 23 that he will seek the Republican nomination for Mayor of New York city. The primary is in September 2017 and the general election is November 2017. De La Fuente was a presidential candidate last year. First he sought the Democratic nomination. Then he became an independent candidate, and the nominee of the Reform Party, and also of the American Delta Party, which he created.

The Coalition for Free & Open Elections, known as COFOE, held its annual board meeting in New York on March 18. The minutes can be see at COFOE’s web page, COFOE.org. COFOE raises money for ballot access lawsuits, especially lawsuits assisting independent candidates. COFOE gets all its revenue from contributions from people who read Ballot Access News.

Connecticut holds a special election to fill the vacant 7^th district State House seat on April 25. The Working Families Party has nominated Joshua M. Hall; he will be the only opponent of the Democratic nominee, Rickey Pinckney. Hall will attempt to qualify for public campaign funds. Hall happens to be a registered Democrat, but that does not prohibit the WFP from nominating him. The district is in Hartford. In November 2016, the WFP did not have any nominee in this district, and the only candidate on the ballot was the Democratic nominee.

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

France elects a president on April 23. Eleven candidates are on the ballot. On March 20, five of them debated each other, including four party nominees and an independent candidate. On April 4, and April 20, there will be more debates, and all eleven candidates will be included. Candidates are listed on the ballot in random order.

The Netherlands held a parliamentary election on March 15. Under the country’s proportional representation system, thirteen parties won seats. Turnout was 82%. The Green Party placed fifth and may be included in the next government.