NORTH CAROLINA SENATE UNANIMOUSLY PASSES BILL LOWERING PETITION FROM 94,221 SIGNATURES TO 10,000

On April 26, the North Carolina Senate passed SB 656 unanimously. It lowers the number of signatures for a new party from 2% of the last gubernatorial vote (94,221) to exactly 10,000. North Carolina required 10,000 signatures for a new party between 1929 and 1981, so the bill restores the old law.

The bill lowers the number of signatures for a statewide independent from 94,221 signatures to 5,000. It lowers independent petitions for district office from 4% of the number of registered voters, to 3%. Current law requires a petition for a new party to obtain the signatures of 200 signatures in each of four U.S. House districts. The bill eases that somewhat, by requiring 200 signatures in each of three districts.

The bill had been introduced on April 4. It was initially sent to the Rules Committee, which was bad for the bill. But on April 21 it was moved into the Senate Elections Committee. It passed that committee and passed the Senate on the same day.

The bill’s author is Senator Andrew Brock, who has been in the Senate since 2002. He is the Republican Deputy Whip and chairs several committees. Press stories about his bill quoted him as saying that it is time to include more people in the election process.

Legislative leaders in the House support the bill, and it is likely to pass the House during May.

If this bill is signed into law, the consequences for nationwide ballot access will be profound. In recent years, North Carolina has been the chief impediment for a presidential candidate (who runs outside the major parties) to get on the ballot in all 50 states.

North Carolina has not had a successful statewide petition drive, for either a new party or an independent candidate, since 2008, which is the last time the Libertarian Party completed the petition. Ever since, the Libertarian Party has polled enough votes to stay on the ballot.

North Carolina is one of only five states in which the Green Party presidential nominee has never been on the ballot (the others are Georgia, Indiana, Oklahoma, and South Dakota). It is one of only four states in which Ralph Nader never appeared on the ballot (the others are Georgia, Indiana, and Oklahoma).

In 2016, North Carolina required 89,366 signatures for a new party and for an independent statewide candidate. For president in 2016, North Carolina had the highest numerical requirement in the nation, when the lower required number of supporters (either new party, or independent) is compared. California was second, with 59,681 registrations required; Texas was third, with 47,086 signatures for a new party.

The North Carolina Senate in the past decade has been very hostile to ballot access reform. The House has been much more favorable.

In 2015 a bill to lower the petition to one-fourth of 1% of the last gubernatorial vote, HB 509, had 28 sponsors in the House, but not a single sponsor could be found in the Senate. In 2013 the House passed HB 794, to study ballot access, but the Senate didn’t even pass that. In 2011 the House passed HB 32, which lowered the petition to 10,000 signatures, but it made no headway in the Senate. In 2005 the House Elections Committee passed HB 88, which lowered the petition to one-half of 1%, but it went no further.

On April 3, the Maryland House passed HB 529. It lowers the number of signatures for a statewide independent from 40,603 signatures (1% of the number of registered voters) to exactly 10,000 signatures. Governor Larry Hogan must act on the bill by May 4.

The bill probably would not have been passed, except that last year, a U.S. District Court issued an opinion which made it seem likely that the old law would be declared unconstitutional if the legislature didn’t act. Maryland requires exactly 10,000 signatures for a new party. The state was hard-pressed to explain why Maryland needs over 40,000 signatures for a single statewide independent, when it lets an entire party on the ballot with only one-fourth as many signatures. The lawsuit was Dorsey v Lamone.

Both bills that improve Oklahoma ballot access made headway during April, but because of legislative deadlines, neither can pass during 2017. However, both bills are alive and can pass in the 2018 half of the session. SB 145 lets independent & minor party presidential candidates get on the ballot by paying a large filing fee, $17,500, instead of a petition. It passed the House Elections Committee on April 5.

SB 350, which makes it easier for a party to remain on the ballot, passed the House Elections Committee on April 12. No one voted against either bill in the House Committee.

On April 26, the Nebraska legislature unanimously passed LB 34, which makes it easier for a party to remain on the ballot. Current law lets a party remain on the ballot if it polls 5% for any statewide race at either of the last two elections. The bill says a party also remains on the ballot if it has at least 10,000 registered members. Governor Pete Ricketts let the bill become law on April 29.

The author, Senator Laura Ebke, is a registered Libertarian. Currently the only parties on the ballot are Republican, Democratic, and Libertarian. At one point Senator Ebke tried to amend her bill to make the requirement 7,500 members, instead of 10,000, but then she retracted that amendment. The Libertarian Party has 11,908 registrants.

On April 25, the Arizona House passed SB 1307. It eases the deadline for all parties to nominate candidates for presidential elector, from early June, to late August. This bill only exists because in 2016, the Green Party missed the June deadline, and filed a lawsuit in federal court, arguing that the state has no interest in such an early deadline. The Secretary of State consented to settling the lawsuit, and put the Green Party presidential nominee on the ballot. The case was Arizona Green Party v Reagan, 1:16cv-2027. The reason the deadline had been so early is before 1988, presidential electors were chosen in Arizona’s primary.

On March 31, the Eleventh Circuit refused to rehear Green Party of Georgia v Kemp, so the decision that Georgia can’t require 50,000 signatures to get on the ballot for president will stand.

Delaware provides that parties with 5% of the registration nominate by primary. Qualified minor parties nominate by convention. Minor parties must choose their nominees by mid-August, and the major parties hold their primaries in September. New parties may qualify as late as mid-August.

On April 4, the House passed a bill moving the primary from September to April, but the House version of the bill did not change any deadlines for minor party convention nominations.

However, on April 25, the Senate Majority Leader, Senator Margaret Rose Henry, proposed an amendment that would require new parties to qualify by March. The amendment would also require all previously-qualified convention parties to hold their conventions no later than April. The amendment has not yet received a vote. There are many court precedents that say states cannot require new parties to have qualified as early as March of an election year.

Delaware is in the Third Circuit. In 1997, the Third Circuit enjoined the New Jersey April petition deadline for independent and minor party candidates, even though the number of signatures in New Jersey never exceeded 800. Therefore, if the Delaware law is changed to require new parties to have qualified by March, that law would probably be held unconstitutional.

Connecticut: HB 7163 would have legalized out-of-state circulators, but it failed to make any headway, and it is now too late for it to pass. The ban on out-of-state circulators was struck down last year, for both general election and primary petitions. Therefore, the existing ban is void, but the failure to update the election code will cause confusion.

Georgia: the legislature has adjourned, and neither ballot access bill made any headway. HB 133 would have cut the number of signatures for independents and minor parties, and SB 112 would have eliminated mandatory petitions. Georgia has two-year sessions, so the bills might move next year.

Hawaii: although SB 462 passed the Senate in March, it didn’t make any headway in the House, and it is now too late for it to pass this year. It would have deleted the requirement that petition signers add their Social Security number to the petition. The Office of Elections asked for this bill, because due to changes in voter registration procedures, some voters can now register without listing their Social Security number.

New Mexico: the legislature has now adjourned, without passing HB 226, which would have lowered the number of signatures for independent candidates and the nominees of political parties that nominate by convention. The bill had passed one committee in the House but did not advance further.

Tennessee: neither bill to ease the number of signatures for a new party passed. HB 662 and SB 770 would have cut the number of signatures from 2.5% of the last gubernatorial vote to 5,000 signatures. The House bill had passed the Local Government Committee 9-3 but then the Senate State & Local Government Committee said it wants to wait until the Sixth Circuit rules in Green Party of Tennessee v Hargett.

Virginia: SB 1236 would have cut the number of signatures for non-presidential independent candidates, and the nominees of unqualified parties, from 10,000 signatures to 5,000 signatures. It also applied to candidates seeking a spot on a primary ballot. It passed the State Senate on January 24 by 20-19, but then another vote was taken, and it lost 18-21. This is rather old news but it had not yet been mentioned in any print version of B.A.N.

Arkansas: on April 26, the Eighth Circuitissued an opinion in Moore v Martin, 15-3558. The issue is the March petition deadline for non-presidential independent candidates that was in effect in 2014 (when the case was filed) and future elections.

Two of the three judges remanded the case back to the U.S. District Court, for more evidence. The state had claimed that it can’t cope with a deadline later than March 1, because it has to do so much work starting in July, when initiative petitions are filed. The state claimed that it is so much work checking initiative petitions, that it must get all the independent candidate petitions checked before July, so they must be in by March 1. The U.S. District Court had accepted this argument and had upheld the March deadline.

The majority on the Eighth Circuit, Judges Duane Benton and Roger Wollman, said the U.S. District Court should not have simply accepted the state’s claims. They sent the case back to the lower court to learn "what periods of time, between the former May 1 deadline and the early July deadline for initiative petitions, were available to the state to process independent candidate petitions". Also the Eighth Circuit said that evidence must be gathered on "when independent candidate petitions were in fact processed in the past". And, "what is the amount of time required to process independent candidate petitions"? Finally, what is "the feasibility of temporarily hiring additional election workers."

The third Eighth Circuit Judge, Lavenski Smith, felt it is already obvious that the state doesn’t need a March petition deadline, and he would have simply declared the law unconstitutional based on the evidence already in the case.

Arkansas doesn’t require independent presidential candidate petitions until August.

In 2016, the state received seven of them and seems to have managed to check them during the same period it was checking initiative petitions.

Independent presidential petitions require 1,000 signatures. Independent petitions for other statewide office are 10,000. Very few such petitions are ever submitted.

Montana: on April 8, Saturday, a few minutes before midnight, U.S. District Court Judge Brian Morris ruled that it is unconstitutional for Montana to require 14,268 signatures to get on the ballot for the special election for U.S. House. He set the requirement for the upcoming May 25 election at 400 signatures. Breck v Stapleton, 9:17cv-36.

However, he didn’t extend the deadline to get those signatures, which had already passed when the decision came out. The case had been filed by three candidates who wanted to be on the ballot but who couldn’t get so many signatures in such a short time. One of them, Thomas Breck, was the Green Party nominee; the other two were independent candidates. The special election had been announced on March 1, the same day that Congressman Ryan Zinke resigned his seat. The state said the petitions were due March 3, and then changed that to March 6. The state argued that independent candidates who wanted to be on the ballot should have started circulating the petition on December 13, 2016, the day that President-elect Donald Trump nominated Zinke to be Secretary of the Interior. But the judge said, "The State could point to no court decision that suggested putative candidates should start collecting signatures based on the mere possibility of an election."

The candidates asked the Ninth Circuit to put them on the ballot, but the Ninth Circuit refused, without any comment. By then many ballots had already been mailed to absentee voters. The candidates also asked the U.S. Supreme Court to put them on, but on April 20, without comment, it also refused.

On April 19, the Ohio Supreme Court refused to rehear the Libertarian ballot access lawsuit on whether Gary Johnson’s vote had created a new ballot-qualified party. The vote test is 3% and Johnson polled 3.17%. The Court had ruled against the plaintiffs on January 20. The rehearing request had been submitted on January 24. The case is State ex rel Fockler v Husted, 2016-1863.

There have been two instances in Ohio history when a group that was not ballot-qualified polled enough votes to meet the vote test, and the state then recognized that the effect of meeting the vote test created a new party. Those instances were in 1912 (the Progressive Party) and in 1996 (the Reform Party). The state did not dispute this fact. The Court’s original ruling had said that the plaintiffs had not proved this assertion. The plaintiffs had submitted affidavit evidence originally, and then had supplemented it with documentary evidence. The Court refused to accept the documentary evidence, ruling that it had been submitted too late.

The Libertarian Party (or any party that wants to be on) needs 54,965 signatures by July 3, 2018. It has already collected 20,000. The Green Party is already on the ballot because its 2014 gubernatorial nominee met the vote test, and parties that meet the vote test get the next two elections. The Libertarian Party gubernatorial nominee would probably have met the 2014 vote test also, but he was kept off the party’s primary ballot because his primary petition circulators didn’t fill in a blank on the forms asking who their employer was.

On April 19, Alabama Governor Kay Ivey called a special election for U.S. Senate, for December 12. Independents need 35,413 signatures by August 15.

It is likely the California legislature will soon pass a bill moving the primary for all office (in presidential years) from June to early March. AB 84 passed the Assembly Elections Committee on April 26 by 6-1. SB 568 passed the Senate Elections Committee unanimously on April 18. Alex Padilla, Secretary of State, strongly supports the bills.

If this bill passes, the top-two system that has been in effect since 2011 will be vulnerable to a new legal challenge. Top-two, in practice, prevents all minor party candidates from running in the general election, unless they are running in a race in which only one major party person filed. This statement is absolutely true; there are no exceptions in history from any top-two state. Washington is the only other top-two state; and Louisiana used the top-two system from 1975 until 1997.

Normally, an election law that bars all minor party candidates from the general election ballot would be held unconstitutional under Williams v Rhodes (issued by the U.S. Supreme Court in 1968) and fourteen other Supreme Court decisions. But top-two so far has escaped being struck down, largely because in 1986, the U.S. Supreme Court said in Munro v Socialist Workers Party that it is only a "slight burden" on minor parties to be excluded from a special U.S. Senate election in Washington state that was being held only fourweeks after the special primary. The minor party candidate was on the special primary ballot. That decision was made at a time when Washington was using a blanket primary system. All candidates appeared on the primary ballot and the top vote-getter from each party advanced to the general election, but only if he or she had polled at least 1%. The SWP candidate had not polled as much as 1% and still wanted to be on the special general election.

In 2012, the Ninth Circuit ruled in Washington State Republican Party v Washington State Grange, 676 F.3d 784, that the burden for minor parties when the top-two system keeps their candidates off the general election ballot is "slight" because the Washington state primary and the general election were only elevenweeks apart. The court thus assumed that four weeks and eleven weeks aren’t that different. It said, "By giving minor-party candidates access to the August primary ballot rather than the November general election ballot, I-872 (the name of the initiative that created top-two in Washington) poses some of these same concerns. I-872, however, is distinguishable from the ballot access rules invalidated in Anderson. First, the I-872 primary is in August, not March."

But, the California bills would put California’s top-two primary in March, which would seem to fall afoul of the Ninth Circuit opinion. If one of these California bills passes, there will be no means onto the general election ballot (for Congress and partisan state office) except by filing in the year before the election. No state in U.S. history has ever before had a system in which allroutes to the general election ballot are foreclosed for candidates who don’t file in the year before the election (except that Arkansas briefly had such a system in place in 2014-2016, but it was held unconstitutional last year in a Libertarian Party lawsuit).

Many federal court decisions have held that states must provide some means onto the general election ballot for candidates who don’t get into the race until the middle of the election year. Otherwise, the voters lose the ability to respond to unexpected events that occur during the first half of an election year. The United States even filed a Human Rights complaint against Azerbaijan in 2000, after that nation passed an election law barring access to the ballot to parties that had not been formed earlier than six months before an election.

Back when California had March primaries for all office in 1996, 2000 and 2004, at least there were avenues for late-declaring independent candidates to get onto the general election ballot; they could file a petition in August.

The U.S. Supreme Court will consider on May 11 whether to hear the Hawaii and Montana open primary cases. The Hawaii Democratic Party and the Montana Republican Party hope the U.S. Supreme Court will hear their lawsuits against open primary laws. On primary day, any voter may pick any party’s primary ballot. Also on May 11, the Court will consider whether to hear the Kentucky Libertarian Party case. The party challenges the state’s restrictive definition of a qualified political party.

On March 29, the Federal Election Commission held a closed meeting and rejected all the evidence that the Commission on Presidential Debates is breaking campaign finance laws. This was not very surprising, because on March 23 the FEC staff had prepared a draft rejection, and had not prepared an alternate draft that did find that the Commission is breaking the law.

One of the differences between states, relating to how a party remains a qualified party, is whether a state gives only one way to accomplish that, or whether the state gives parties two alternate routes. The chart on page five shows that eighteen states have more than one method for a party to remain qualified. "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	Poll 20% for a statewide race	– –	17-16-2
Alaska	Poll 3% for Governor, Senate, or House	Have registration equal to 3% of vote cast	15.60.010
Arizona	Poll 5% for President or Governor	Have registration of two-thirds of 1%	16-804A
Arkansas	Poll 3% for President or Governor	– –	7-1-101
California	Poll 2% for a statewide race, pri or gen	Have registration of .33%	Elec. Code 5100a
Colorado	Poll 1% for a statewide race, either last 2	Have 1,000 registered members	1-4-1303
Connecticut	Poll 1% for the particular office	Poll 20% for Governor	9-372
Delaware	Have registration of .1%	– –	3001
Florida	Continue to file financial reports	– –	97.021
Georgia	Poll 1.5% a statewide (statewide only)	Poll 20% for President or Governor	21-2-180
Hawaii	Poll 2% for State Senate, all races	Have been on ballot for 3 elections in a row	11-62(d)
Idaho	Run at least 3 candidates	Poll 3% for any statewide race	34-501
Illinois	Poll 5% for a statewide race (statewide only)	Poll 5% for Governor	10 ILCS 5/10-2
Indiana	Poll 2% for Secretary of State	– –	3-8-7-25
Iowa	Poll 2% for President or Governor	– –	43.2
Kansas	Poll 1% for any statewide race	– –	25-302
Kentucky	Poll 2% for President	– –	118.325
Louisiana	Run at least one candidate in 4-yr period	– –	441
Maine	Have registration of 10,000 active voters	– –	321.1
Maryland	Poll 1% for President or Governor	Have registration of 1%	4-103
Mass.	Poll 3% for a statewide race	Have registration of 1%	Ch. 50-1
Michigan	Poll 1% for a statewide race	– –	168.685
Minnesota	Poll 5% for a statewide race, either of last 2	Have 77 candidates for fed or state office	200.02(7)
Mississippi	Submit list of party officers	– –	23-1-81
Missouri	Poll 2% for any statewide race, either last 2	– –	115.013
Montana	Poll 5% of gub winner vote, either of last 2	– –	13-10-601
Nebraska	Have 10,000 registered members	Poll 5% for a statewide race, either of last 2	32-521
Nevada	Poll 1% for any statewide race	Have registration of 1%	293.1715
N.Hamp.	Poll 4% for US Senate or Governor	– –	652:11
N.Jersey	Poll 10% for Assembly, all races	– –	19:1-1
N. Mexico	Poll one-half of 1% for Pres or Gov	– –	1-8-2
New York	Poll 50,000 for Governor (approx. 1%)	– –	1-104.3
No.Caro.	Poll 2% for President or Governor	– –	163-96
No.Dakota	Poll 5% for certain statewide races	Hold caucus in all 432 precinct, even years	16.1-11-30
Ohio	Poll 3% for President or Governor	– –	3517.01
Oklahoma	Poll 2.5% for President or Governor	– –	1-109
Oregon	Have registration of .5%	Poll 1% for a statewide race, either of last 2	248.008
Pennsy.	Have registration of 15%	– –	2872.2(a)
Rhode Is.	Poll 5% for Pres or Gov, either of last 2	– –	17-1-2(f)
So.Caro.	Run at least one candidate in 4-yr period	– –	7-9-10
So.Dakota	Poll 2.5% for Governor	– –	12-1-3(3)
Tennessee	Poll 5% for a statewide race	– –	2-104
Texas	Poll 5% for a statewide race	Poll 2% for Governor	181.005, 172.002
Utah	Poll 2% for a statewide race, either of last 2	– –	20-3-2(g)
Vermont	Have town committees in 10 towns	Poll 5% for a statewide race	2103(23)
Virginia	Poll 10% for a statewide race, either of last 2	– –	24.2-101
Washingtn	Poll 5% for President	– –	29.01.090
West Va.	Poll 1% for Governor	– –	3-1-8
Wisconsin	Poll 1% for a statewide race, either of last 2	– –	5.62
Wyoming	Poll 2% for certain statewide races	– –	22-1-102

On April 25, Connecticut held a special election to fill the vacant State House seat, 7^th district, in Hartford. The Working Families nominee, Joshua Hall, won the election with 625 votes. The Democratic nominee polled 512 votes and an independent running with Republican support polled 367 votes.

In November 2016, the only candidate on the ballot had been the Democratic nominee. The Working Families Party did not have a nominee in the district then.

This is the second time the WFP has won a Connecticut legislative election. It won a State Senate seat in 2015, in another special election.

On April 8, the U.S. Virgin Islands held a special election to fill a vacancy in the legislature. Janelle Sarauw, an independent, won the election, defeating opponents from the Democratic Party, the Independent Citizens Movement, and some other independent candidates. U.S. Virgin Islands has three ballot-qualified parties: Democratic, Republican, and Independent Citizens Movement.

Illinois held non-partisan local elections in many places on April 4. Eight Libertarian Party members and seven Green Party members were elected or re-elected. The Libertarians were: Jason Howard, New Lenox Trustee; Brian Inzerello, Des Plains Board of Education; Kelly Liebmann, Greenwood Township Trustee; John Prentice, Paw Paw Trustee; Jonathan Russell, Harrisburg Board of Education; Karin Vermillion, Mahomet Library Board; Tami Wessel, Brookport Mayor; Aaron Wright, Collinsville Recreation Board.

The Greens were Jessica Bradshaw, Carbondale City Council; Don Crawford, St. Elmo Library Board; Steve De La Rosa, Villa Park Library Board; Holly Scholz, Fox Valley Park District Commissioner; Gary Shepard, Carbondale Elementary Board of Education; Scott Summers, McHenry County Regional School Board; Kyle Taylor, Kane County Regional School Board.

On April 20, the Florida Secretary of State said that the Independent Party is again a ballot-qualified party. Parties get recognized by filing a list of officers and a party constitution and by-laws, but the Secretary of State in recent years has become hyper-technical about these requirements, and it is no longer easy for a party to gain recognition. The Independent Party had been disqualified in February 2017 because its audit (required by the state) had been performed by a Certified Public Accountant whose credentials the state found wanting. Because the party went off the ballot in February, it lost all its 262,599 registered members, and must start accumulating members from zero.

On April 20, the Federal Election Commission deadlocked 3-3 on whether to extend the Socialist Workers Party’s exemption from having to reveal who contributes to its candidates. The party had had this exemption because the U.S. Supreme Court had ruled that the historical record shows the persons publicly identified as members or supporters of the SWP are liable to be harassed, by agencies of government, or private individuals. The exemption had been extended by the FEC many times, but it was never for an indefinite amount of time. The last exemption expired at the end of 2016. Because the FEC vote was a tie, no further exemption was approved. The three Republican members of the FEC voted in favor of the SWP. The SWP will now probably sue the FEC.