OKLAHOMA EASES PRESIDENTIAL BALLOT ACCESS

NEW LAW IS STILL SEVERE: FEE OF $35,000, OR ABOUT 28,000 SIGNATURES

On the evening of April 27, the Oklahoma House passed SB 145, which eases ballot access for independent presidential candidates, and the presidential nominees of unqualified parties. This was a surprise. On the morning of April 27, the bill was not on that day’s agenda for the House. But someone managed to put it on the agenda during the afternoon, and it passed unanimously. Bills had to pass by that day or they could not pass at all this year. The legislative assistant to the bill’s author told me that she had never before seen a bill added to the agenda after the agenda had been set.

Governor Mary Fallin signed the bill on May 5. As a result of the bill passing, the lawsuit filed in 2016 by Rocky De La Fuente and Jill Stein, De La Fuente v Ziriax, was voluntarily dismissed on May 10.

The old law required a petition of 3% of the last presidential vote, the highest requirement for independent presidential candidates in the nation. The new law lowers it to 3% of the last gubernatorial vote, which is tied with New Mexico for highest percentage requirement of any state. Whereas the old law would have required 43,590 signatures in 2020, the new law will probably require approximately 28,000 signatures (the 2018 election hasn’t been held yet, so we can’t know what the 2020 requirement will be; but in 2016 it would have been 24,745).

SB 145 also lets an independent presidential candidate, or the presidential nominee of an unqualified party, on the ballot with no petition, if a fee of $35,000 is paid.

When SB 145 was signed, its fee was $17,500. Unfortunately, a few days later, another bill passed, doubling the fee.

SB 323, which raised filing fees for all offices, had passed both houses in April, but it was in a conference committee because the versions passed by each house did not agree with each other. SB 323 emerged from conference committee on May 8, and was signed May 15.

The new fee amount may be unconstitutional. The U.S. Supreme Court in 1972 and again in 1974 said filing fees are unconstitutional unless the amount of the fee is needed to keep the ballot uncrowded. Furthermore, the Court said in 1983 that states must go easier (or at least be no more difficult) for independent presidential ballot access, than ballot access for independent candidates for other office. Because no other Oklahoma candidate filing fee is greater than $2,000 (that is the new fee for Governor), it seems very difficult to justify why the presidential fee should be $35,000.

The only two other states that permit an independent presidential candidate to get on the ballot with no petition, if a fee is paid, are Louisiana ($500) and Colorado ($1,000).

If Oklahoma tries to defend the $35,000 by saying it doesn’t matter how high the fee is, because there is an alternate petition, potential plaintiffs can say the alternate petition is also unconstitutional, because independent candidates for other office can get on the ballot with zero signatures. So, whether one looks at the Oklahoma fee or the Oklahoma petition, the state is still violating the Supreme Court’s 1983 decision.

As a result of SB 145 passing, for the first time since 1891, no state requires a petition greater than 2% for an outsider presidential candidate to get on the ballot.

On March 13, South Dakota Governor Dennis Daugaard signed HB 1034, which makes it easier for a party to remain on the ballot. The old law required a vote of 2.5% for Governor. The new law requires 2.5% for any statewide race. The old law only required the vote test to be met every four years, and the new law requires it to be met every two years.

Nevertheless, it will now be much easier for parties to pass the vote test. Every two years, South Dakota elects a Public Utilities Commissioner in a partisan election, and normally any minor party nominee for that office can poll at least 2.5%. In 2014, the Constitution Party polled 4.95% for that office; in 2012 the Libertarian Party polled 5.67%. Both times, both major parties had nominees for that office.

Other states that have made it easier for parties to remain on the ballot in the last forty years are Alaska, Arizona, Arkansas, Colorado, Delaware, Florida, Georgia (for statewide office only), Hawaii, Idaho, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, Texas, Utah, Vermont, Wisconsin, and Wyoming.

On May 24, the Oregon House passed the National Popular Vote bill, HB 2927. The Senate is expected to pass it also, after amending it to require the voters to vote on the idea in November 2018.

States continue to repeal straight-ticket devices. On May 5, Iowa Governor Terry Branstad signed HF 516, which repeals Iowa’s device. On May 20, Saturday, the Texas legislature passed HB 25, which repeals the device. Governor Greg Abbott has until June 20 to decide whether to sign or veto it. He is very likely to sign it.

In Michigan, the state repealed the device in early 2016, but then some voters filed a federal lawsuit arguing that repeal discriminates against black voters. A federal court ordered the state to leave the device in place pending a trial, which has yet to take place. On May 4, the Michigan House passed HB 4177, which deletes ballot logos. If HB 4177 is signed into law, that will help the state win the lawsuit and eliminate the device.

The reason the logo is relevant to the lawsuit is that in the absence of a straight-ticket device, some voters think they can vote a straight ticket by drawing a circle around the party logo of the party that voter supports. But if the logo is removed, that confusion won’t occur. A logo is a cartoon that is printed at the top of ballots, one for each party. The logo is prepared by each party to symbolize what it stands for. For example, the Michigan Republican logo is a cartoon of the faces of Presidents Abraham Lincoln and Ronald Reagan.

Besides Michigan, the only other states with the device (assuming the Texas repeal is signed) are Alabama, Indiana, Kentucky, Oklahoma, Pennsylvania, South Carolina, and Utah. All have Republican majorities in their state legislatures.

On May 2, Arizona Governor Doug Ducey signed SB 1307, which moves the deadline for parties to choose presidential electors from early June to late August.

On May 8, the North Carolina House moved SB 656 from the Rules Committee to the Elections Committee. This puts it in a position to pass the House during June. It lowers the number of signatures for a new party from 94,221 signatures to 10,000.

On May 15, the New York Assembly passed AB 3052 by 127-16. It moves the primary for state and local office from September to June (the congressional primary is already in June). Unfortunately, it also moves the petition deadline for independent candidates, and the nominees of unqualified parties, from August to late May. There is no rational reason for that provision to be in the bill. If it passes, it would probably be held unconstitutional.

Cases in which courts have struck down independent petition deadlines that were in May, June, July or August are:

Alaska: Sigler v McAlpine (Superior Court, 1988, 3AN-88-8695). June is too early.

Arizona: Nader v Brewer, 531 F.3d 1028 (9^th cir. 2008). May is too early.

Idaho: Populist Party v Evans (9^th circuit 1984, 84-4108. May is too early.

Kansas: Merritt v Graves (U.S. Dist. Ct., 1988, 87-4264). June is too early.

Massachusetts: Serrette v Connolly (Suffolk Superior Court 1984, 68172). May is too early.

Nevada: Fulani v Lau (U.S. Dist. Ct., 1992, cv-N-92-535. June is too early.

Rhode Island: McCarthy v Noel, 420 F.Supp. 799 (1976). August 12 is too early.

South Dakota: Nader v Hazeltine, 110 F.Supp. 1201 (2000). June is too early.

Let the People Rule, Teddy Roosevelt and the Birth of the Presidential Primary, by Geoffrey Cowan, W. W. Norton & Co., 2016, 404 pages.

In U.S. presidential elections 1908 and earlier, no state ever held a presidential primary. But in 1912, thirteen states held presidential primaries. This book explains why so many states instituted presidential primaries between 1911 and 1912. Theodore Roosevelt decided in 1911 that he would try to win the Republican presidential nomination in 1912 against Republican president William Howard Taft. He deduced that his chances would be better if states used presidential primaries. So, he and his allies set about persuading as many state legislatures as possible to pass bills creating them.

Roosevelt had not been interested in other election ideas associated with the progressive movement. He did not care about the initiative, referendum or recall. He didn’t even care about women’s suffrage, or direct election of U.S. Senators, at first. So it was somewhat inconsistent for him to jump into the fight for presidential primaries. He did it for self-interest.

The book describes the battles over whether various states should create presidential primaries. It also describes the intense battle between Roosevelt and Taft over the Republican nomination. Republican Party state conventions in some states were so unruly, frequently police had to be installed in the convention halls to try to maintain order. The book also tells the riveting story of how Taft and Roosevelt both tried to woo African-American Republican delegates. Neither man was a whole-hearted friend of black delegates. Roosevelt’s historical reputation has been tarnished because even though he was all in favor of black delegates from some states, he was opposed to letting them be delegates in deep south states. Anyone who enjoys the history of U.S. presidential elections will find this book fascinating.

On May 11, the Sixth Circuit issued an opinion in Green Party of Tennessee v Hargett, 16-6299, the case that challenges Tennessee’s petition requirement for new parties, 2.5% of the last gubernatorial vote.. The opinion is nine pages and is entirely about procedure concerning presentation of evidence. It says that the U.S. District Court decision, upholding the law, contains no procedural errors and therefore it stands. However, the Sixth Circuit said nothing about the merits of the law itself.

The opinion will not be reported and doesn’t even identify the judge who wrote it. The case had been filed by the Green and Constitution Parties in 2012. It had won in the U.S. District Court twice, but each time, the state had appealed to the Sixth Circuit and the Sixth Circuit had said the case needs more evidence. This was the third time the case was in the Sixth Circuit. At the 2016 trial, the case had a different judge than the judge who had struck down the law earlier. The new judge, Waverly Crenshaw, an Obama appointee, excluded much of the key evidence presented by the parties, for technical, procedural reasons.

If the evidence had been allowed, it would have showed that the Tennessee 2.5% petition has existed since 1972 and no group has ever successfully used it. That alone should have been enough to invalidate the law, because the U.S. Supreme Court has said twice that ballot access laws that are so strict they are almost never used are probably unconstitutional

The latest Sixth Circuit panel consisted of Judges R. Guy Cole, Ronald Lee Gilman (Clinton appointees), and Ralph B. Guy (a Reagan appointee). They did not allow oral argument. Because the decision does not discuss the merits of the case, it would be possible for another party, such as the Libertarian Party, to file an entirely new case.

On May 15, the U.S. Supreme Court refused to hear Libertarian Party of Kentucky v Grimes, 16-1034. The issue was the state’s restrictive definition of "political party". A group cannot be a qualified party without a particular showing in a presidential race. The only other state with such a characteristic is Washington.

The Court also turned down the Hawaii Democratic Party, and the Montana Republican Party. Both parties had hoped the Court would hear their cases against state laws that force them to let all voters vote in their primaries, even voters who are loyal to other parties. Democratic Party of Hawaii v Nago, 16-652, and Ravalli County Republican Committee v Stapleton, 16-806.

On May 22, the Court refused to hear Republican Party of Louisiana v Federal Election Commission, 16-865. The issue is the federal law restricting donations to state political parties if the money is used for federal campaign activity. Instead the Court summarily affirmed the decision of the lower court, which had upheld the federal limits.

On May 8, a federal lawsuit was filed, charging that the ratio between California voters and the number of legislators is so extreme, Californians effectively do not have a voice in their legislature. The State Senate districts have almost 1,000,000 voters, and the Assembly districts have almost 500,000. Citizens for Fair Representation v Padilla, e.d., 2:17cv-973. The Libertarian Party and the American Independent Party are co-plaintiffs, along with some public officials.

The Boards of Supervisors of several low-population counties had voted to join this lawsuit, but then they changed their mind.

On May 23, the Maine Supreme Judicial Court issued an advisory opinion, saying the state constitution does not permit ranked choice voting, for state office. In 2016, the voters had passed an initiative to use ranked choice voting. The legislature could now pass a constitutional amendment allowing it. Or it could amend the ranked choice voting to apply only to congress. The case is Opinion of the Justices OJ-17-1.

The constitution says state office elections must be decided by a plurality. It is possible to argue that ranked choice voting does not contradict that part of the constitution, but the Court didn’t accept that argument.

Pages four and five carry charts that show how many minor party and independent candidates have been on the ballot in regularly-scheduled elections for U.S. House, 1970 through 2016.

They show that Georgia has not had any such candidacies, except for one in 1982. By contrast, every other state has had at least twelve during the period 1970-2016.

Since 1943, Georgia has required a petition of 5% of the number of registered voters. In 1982, due to late redistricting for the two Atlanta districts, the 5% petition was suspended, and that is the only reason an independent qualified in 1982. No one has complied with the 5% petition for U.S. House since 1964.

The chart also shows how the number of minor party and independent candidates nationally has risen and fallen. Because of the top-two system in California and Washington, the number of such candidates has been lower recently.

State	1970	1972	1974	1976	1978	1980	1982	1984	1986	1988	1990	1992	TOTAL
Al	9	12	5	2	2	10	4	6	1	7	2	13	73
Ak	0	0	0	0	0	0	0	1	1	0	0	2	4
Az	1	0	1	5	4	4	4	3	1	2	0	7	32
Ar	0	0	0	0	0	0	0	1	1	0	0	1	3
Ca	32	20	26	15	15	47	37	36	38	38	33	79	416
Co	4	4	2	4	3	7	5	7	1	1	2	4	44
Ct	1	1	7	9	2	2	7	5	1	2	1	10	48
De	1	2	4	4	0	1	3	1	1	0	1	1	19
DC	n/a	3	4	3	3	1	0	0	1	2	3	2	22
Fl	0	0	0	1	0	1	0	0	0	0	0	9	11
Ga	0	0	0	0	0	0	1	0	0	0	0	0	1
Hi	0	0	0	4	3	2	3	2	2	2	2	2	22
Id	1	1	0	0	0	0	0	0	1	1	0	4	8
Il	0	1	3	4	1	1	3	1	1	2	7	6	30
In	0	1	2	3	8	2	5	11	11	0	0	4	47
Ia	3	1	2	5	2	6	1	0	0	1	1	4	26
Ks	3	5	5	5	1	2	4	4	0	0	0	4	33
Ky	1	3	6	3	3	4	6	2	3	1	1	1	34
La	2	1	2	3	2	1	5	1	2	0	7	4	30
Me	0	0	0	1	6	0	1	1	1	0	0	1	11
Md	2	0	0	2	0	0	0	2	0	0	1	1	8
Ma	1	5	6	8	6	3	2	2	3	2	2	17	57
Mi	7	18	50	59	7	23	20	13	10	19	12	29	267
Mn	2	3	3	10	3	5	4	3	2	3	0	16	54
Ms	2	4	6	3	4	2	3	2	0	2	0	3	31
Mo	6	2	2	3	3	0	2	2	1	5	0	6	32
Mt	0	0	0	0	0	0	2	1	0	0	0	1	4
Neb	1	0	0	1	0	1	0	0	0	0	0	0	3
Nev	0	0	1	2	1	1	1	2	1	2	2	4	17
NH	0	0	0	1	1	0	1	3	0	1	0	5	12
NJ	8	12	25	35	19	38	26	10	7	11	27	65	283
NM	0	0	2	1	0	0	0	2	0	1	0	1	7
NY	28	41	38	37	31	39	40	18	29	26	31	29	387
NC	2	2	4	8	3	2	12	1	0	0	0	9	43
ND	0	1	0	1	2	2	1	0	1	1	0	0	9
Oh	3	10	6	19	7	6	16	9	3	0	2	9	90
Ok	2	1	1	7	0	1	3	3	1	0	0	1	20
Or	0	0	0	3	1	1	0	0	0	0	2	1	8
Pa	23	6	7	18	8	16	17	9	7	6	1	11	129
RI	2	1	0	2	0	0	1	0	0	0	0	4	10
SC	3	0	4	3	2	3	2	6	1	2	1	3	30
SD	0	0	0	1	0	0	0	0	0	0	0	3	4
Tn	3	5	3	7	3	1	3	0	4	1	10	23	63
Tx	0	5	6	10	2	11	29	1	8	14	2	14	102
Ut	2	2	3	1	5	3	1	5	3	3	5	7	40
Vt	1	0	1	0	1	1	4	3	3	4	2	4	24
Va	1	6	5	6	2	5	4	3	3	3	8	6	52
Wa	4	1	4	12	3	2	3	0	0	0	2	10	41
WV	0	0	0	0	0	0	1	0	0	0	0	0	1
Wi	8	9	4	5	5	4	10	5	4	1	1	7	63
Wy	0	0	0	0	0	0	0	1	0	2	0	1	4
Tot	169	189	250	336	174	261	298	188	158	168	171	448	2809

State	1994	1996	1998	2000	2002	2004	2006	2008	2010	2012	2014	2016	Total
Al	1	10	0	7	7	0	1	0	1	0	1	0	28
Ak	1	2	1	3	2	2	3	1	0	2	1	2	20
Az	5	4	7	8	8	8	9	11	12	9	6	2	89
Ar	0	2	1	0	0	1	0	3	4	8	4	4	27
Ca	50	106	77	111	55	42	41	33	42	4	4	2	567
Co	2	5	5	13	14	8	8	4	13	16	8	8	104
Ct	6	10	10	6	3	3	2	7	4	4	4	3	62
De	2	3	2	2	1	2	2	1	3	2	2	2	24
DC	2	2	3	2	1	0	0	1	2	2	2	2	19
Fl	0	1	1	8	5	3	5	11	16	17	9	11	87
Ga	0	0	0	0	0	0	0	0	0	0	0	0	0
Hi	3	5	2	2	3	1	0	3	2	0	1	2	24
Id	0	2	1	3	2	0	5	0	3	2	0	1	19
Il	2	14	6	2	6	3	2	10	13	5	2	2	67
In	1	10	8	11	10	7	3	5	10	5	8	9	87
Ia	7	11	6	9	5	3	5	4	7	6	2	3	68
Ks	0	5	1	4	5	5	4	8	5	3	1	6	47
Ky	1	0	3	6	4	4	4	1	2	5	1	0	31
La	4	0	0	10	8	0	5	6	5	9	8	9	64
Me	2	1	1	1	0	1	1	0	0	0	2	0	9
Md	0	0	0	1	1	7	4	8	10	10	4	11	56
Ma	3	8	4	3	1	2	3	1	10	4	1	5	45
Mi	24	36	32	50	22	30	30	34	40	29	26	30	383
Mn	2	8	12	14	5	5	6	4	13	2	5	3	79
Ms	1	12	9	8	9	5	2	2	11	8	10	8	85
Mo	6	16	11	24	10	17	13	10	12	10	10	11	150
Mt	1	1	2	1	1	1	1	1	1	1	1	1	13
Neb	0	2	1	3	4	5	0	0	1	0	1	1	18
Nev	3	6	5	8	8	5	6	9	6	8	8	8	80
NH	5	3	1	3	2	1	1	2	3	2	0	4	27
NJ	24	40	41	37	23	26	19	21	25	29	25	29	339
NM	2	3	2	1	0	0	0	1	0	0	0	0	9
NY	28	31	29	39	32	12	5	12	12	15	14	9	238
NC	0	20	12	13	12	0	0	3	4	3	1	1	69
ND	1	1	1	2	0	0	0	0	0	1	1	1	8
Oh	5	17	3	32	4	1	1	6	19	10	6	4	108
Ok	2	4	2	9	3	3	2	2	3	6	5	3	44
Or	6	12	11	5	6	9	6	13	7	8	11	6	100
Pa	9	14	10	7	10	17	6	6	5	6	1	2	93
RI	0	6	3	2	2	2	2	1	3	2	0	2	25
SC	1	6	6	13	9	3	4	2	12	3	3	7	69
SD	1	2	0	1	1	1	1	0	1	0	0	0	8
Tn	8	27	10	6	15	9	14	13	33	18	15	12	180
Tx	24	30	28	29	35	35	31	31	36	48	42	41	410
Ut	3	6	7	9	4	8	7	5	8	5	11	4	77
Vt	4	5	4	4	4	2	6	5	2	3	4	1	44
Va	7	9	6	10	3	5	10	5	14	9	16	3	97
Wa	1	4	5	11	8	4	1	0	1	0	0	0	35
WV	0	0	3	3	0	1	0	0	1	0	2	1	11
Wi	7	4	2	1	5	9	3	4	5	2	3	6	51
Wy	1	1	1	2	1	1	1	1	1	3	2	2	17
Tot	268	527	398	559	379	319	285	311	443	344	294	284	4411

On May 9, British Columbia held an election for provincial legislature. The results: Liberal Party 43 seats; New Democratic Party 41; Green 3. No party has a majority, so the Green Party’s three legislators have a great deal of power to decide who becomes Premier. This election is an example of the power that voters who vote for parties other than the two largest parties can exert.

The popular vote share for each party that got as much as one-tenth of 1% of the entire vote in the province was: Liberal 40.36%; New Democratic 40.28%; Green 16.84%; independent candidates 1.08%; Conservative .53%; Libertarian .40%; Christian Heritage .18%. The only three parties that had candidates in all districts were Liberal, New Democratic, and Green.

On May 10, New Hampshire Representative Joseph Stallcop held a press conference to say he had switched his party registration from Democratic to Libertarian. He became the second New Hampshire legislator to switch to the Libertarian Party this year. He had been elected without opposition last year, and is 21 years old. He represents part of Keene, in the southwest corner of the state.

The Clerk of the U.S. House of Representatives has published Statistics of the Presidential and Congressional Election of November 8, 2016. It is 85 pages. It has the general election returns for president and both houses of Congress. It can be obtained by phoning 202-225-1908. Or, if one googles the title of the book, one can see it on-line. The Clerk has been publishing such election returns for each election starting in 1920. The book is free.

On May 9, Green Party members were elected to two positions in Massachusetts. Damon Jesperson won for Newbury Select Board, and Charlene DiCalogero won for Berlin Library Board. On April 4, Libertarian Party member Austin Gravley was elected to the Frostproof, Florida, city council. All of these elections are non-partisan. On May 2, candidates affiliated with the Working Families Party placed first in two city council seats, and three school board seats, in Columbus, Ohio. They qualified for the runoff, to be held in November.

On May 25, the United Utah Party submitted its petition to be a qualified party. It expects to run someone for U.S. House in the November 7, 2017 special election in the Third District. It holds itself out as a centrist party and will appeal to the same voters who supported Evan McMullin for president last year. McMullin polled 21.5% of the Utah presidential vote last year.

In other petitioning news, the Libertarian Party is virtually finished with its 2018 Arkansas party petition, and also its 2017 gubernatorial petitions in New Jersey and Virginia. The Green Party has also finished its gubernatorial petition in New Jersey, and that petition has been accepted by the state.

On May 17, California Assemblyman Rob Bonta withdrew his AB 22, which repeals an obsolete state law banning Communist Party members from state employment. The bill had passed the Assembly a few days earlier, but Bonta was besieged with complaints, largely from Vietnamese-Americans, and he bowed to their wishes.