U.S. DISTRICT COURT INVALIDATES UTAH PETITION DEADLINE FOR NEW PARTIES IN SPECIAL ELECTIONS

FIRST BALLOT ACCESS CASE UTAH HAS LOST SINCE 1984

On August 2, U.S. District Court Judge David Nuffer, an Obama appointee, struck down Utah’s petition deadline for newly-qualifying parties to get on the ballot for a special election. Utah doesn’t have a statutory deadline for new parties in special elections, but the state elections office had administratively created a deadline six months before the election. The decision says that is too early, especially as applied to a newly formed party. The case had been filed by the United Utah Party, which didn’t even exist until May 2017. It is a centrist party which can now run Jim Bennett in the special U.S. House election on November 7, 2017. United Utah Party v Cox, 2:17cv-655.

Bennett is the son, and also the grandson, of two previous U.S. Senators from Utah, Wallace Bennett and Bob Bennett. Both were Republicans.

Utah had not lost a constitutional ballot access case since 1984, when independent presidential candidate Lyndon LaRouche won against the April petition deadline for independent presidential candidates, LaRouche v Monson, 599 F.Supp. 521.

Earlier this year, the Utah legislature moved the petition deadline for newly-qualifying parties to get on the ballot in regular elections from February of the election year, to November of the year before the election. Although all Utah legislators were in receipt of an e-mail from me, explaining that such a bill would be held unconstitutional if it were ever challenged, the bill (SB 13) passed almost unanimously. It will be interesting to see if the 2018 session of the legislature changes that deadline.

This is the first constitutional ballot access case than any minor party or independent candidate has won anywhere in the nation since April 8, when the Montana requirements for an independent candidate to get on the ballot in a special congressional election were struck down.

Utah had argued that Jim Bennett should have petitioned as an independent candidate; the deadline for that petition is later. But the decision says the independent option would "fall short of protecting Plaintiffs’ right to association in the special election…The Supreme Court held that ‘we can hardly accept as reasonable an alternative that requires candidates and voters to abandon their party affiliations. This is no less true for a new political party. Plaintiffs have a protectable constitutional right to associate as a party under the UUP banner."

In Utah, candidates who use the independent petition can’t choose any ballot label other than "independent." Before 2009 Utah let such candidates choose any label that didn’t mimic the name of a qualified party, but in 2009 Utah ended that policy.

Utah had also argued that if the United Utah Party won the lawsuit, that would increase election administrative costs, but the decision says, "Courts have repeatedly rejected the argument that cost is a sufficient state interest in election cases."

Utah had argued that letting the United Utah Party on the ballot would promote factionalism, but the decision says, "UUP is countering factionalism and giving voters a consolidated voice distinct from the established parties."

On August 11, a California Republican activist, Thomas E. Palzer, filed a proposed constitutional initiative with the California Attorney General that would repeal the top-two system. It would return California to the semi-closed primary used between 2001 and 2010.

The Attorney General now has 65 days to prepare a title and a summary for the petition. Only then can the petition start to circulate. It needs 585,407 signatures, and they must be gathered within six months, which works out to April 2018.

Palzer has been working on this project for over a year, and he didn’t file the initiative until he felt confident that he can raise enough money to get the needed signatures.

The Sacramento Bee publicized the initiative on August 22. It quoted the state chair of the Democratic Party, Eric Bauman, "Progressives have been forced to spend nearly $200 million in contests featuring two Democrats. This is a system that silences the Democratic base and completely excludes third parties from even competing in the fall…the fact that this initiative was filed by Republicans underscores how flawed the top-two system really is."

California’s top-two has never permitted any minor party member to qualify for the general election ballot, except in instances when only one major party member was running.

Palzer can be reached at PO Box 2413, Rancho Cucamonga Ca 91729, tompalzer1 at gmail.com. The web page is stoptop2.com.

On August 28, Illinois Governor Bruce Rauner signed SB 1933. It provides that every adult citizen known to exist will automatically be registered. After such individuals are registered, they will be informed and given a chance to retract the registration. This system is known as "Automatic Voter Registration".

Although this bill has no direct impact on Illinois’ severe petition requirements, it will have a beneficial indirect impact. In the future, the validity of petitions will be higher, because a larger proportion of residents will be registered voters.

On August 29, the U.S. Court of Appeals, D.C. circuit, issued an eleven-page opinion in Gary Johnson v Commission on Presidential Debates, 16-7107. It rejected the argument by Gary Johnson and Jill Stein that the Commission on Presidential Debates has been in violation of federal anti-trust laws. The majority opinion, by Judge Janet Rogers Brown, a Bush Jr. appointee, says the plaintiffs don’t have standing. Judge Cornelia Pillard, an Obama appointee, wrote separately to say that they do have standing, but that they lose on redressibility.

On August 21, U.S. District Court Judge John E. Jones, a Bush Jr. appointee, upheld the action of the state elections office to remove Rocky De La Fuente from the November 2016 ballot. No one challenged De La Fuente’s petition, and he had enough valid signatures. But the state itself removed him (which is unusual in Pennsylvania) because he had run in the 2016 Democratic presidential primary. De La Fuente v Cortes, m.d., 1:16cv-1696.

Judge Jones ignored two points that De La Fuente had made: (1) the true candidates in November are the presidential elector candidates, not the presidential candidate; (2) that no state’s presidential primary nominates anyone for president.

The decision says that the Supreme Court upheld sore loser laws in Storer v Brown, a 1974 case that concerned office other than president. Judge Jones mentioned U.S. Term Limits v Thornton, the 1995 Supreme Court ruling that said states can’t add to qualifications to run for federal office. But he said the issue in that case was different.

The principle set forth in U.S. Term Limits was that states can’t bar someone from running for federal office because of that candidate’s prior political behavior. In that case, the past behavior was having been elected to Congress in three previous elections. The same principle applies to De La Fuente. Pennsylvania kept him off the ballot because of his prior behavior: seeking the Democratic nomination. Therefore Judge Jones should have known that U.S. Term Limits does control this case.

The judge also said that in U.S. Term Limits, the Arkansas law in that case "placed an outright ban on candidates who had already served three terms." That is not true. The Arkansas law permitted them to be write-in candidates.

There was no Pennsylvania precedent on whether presidential primaries are covered by the sore loser law. In 1980, John B. Anderson ran in twenty Republican presidential primaries, and he was not kept off the November ballot in any state. But it happens that in 1980, Anderson failed to get on the Pennsylvania Republican primary ballot, so no precedent was set. Other candidates who ran in presidential primaries, and then were able to be on the November ballot as independents or minor party nominees (such as Theodore Roosevelt, Lyndon LaRouche, and David Duke), also didn’t do that in Pennsylvania. De La Fuente will appeal to the Third Circuit.

During August, several California election law bills of dubious constitutionality advanced:

SB 149, to bar presidential candidates from any presidential primary ballot unless they make public their income tax returns, passed the Assembly Appropriations Committee on August 23 and is expected to pass the Assembly in a few days.

SB 117, which makes it more difficult for recall petitions to succeed, was signed into law on August 24. It lets signers remove their names from the petition after the petition has been submitted and verified. It takes effect immediately and is intended to thwart a recall against State Senator Josh Newman. The recall petition has already been checked and it has enough valid signatures, but the Secretary of State won’t certify the election because of the bill. Supporters of the recall filed a lawsuit on August 24 to invalidate it, or at least to get a ruling that it can’t take effect immediately. Howard Jarvis Taxpayers Association v Padilla, state appeals court, 3^rd district, CO85381.

On August 4, the U.S. Supreme Court asked Minnesota to file a response in Minnesota Voters Alliance v Mansky, 16-1435. This is the case over Minnesota’s law that bans any clothing or badges at the polls, if such clothing or badge has any political content. One of the plaintiffs was ejected from the polls because he had a shirt on that mentioned the Tea Party. But the Tea Party was not on the Minnesota ballot.

The lower courts had upheld the law. Generally if the U.S. Supreme Court asks for a response from the side that won earlier in the lower court, that means the Supreme Court is interested in the case. The response is due September 5.

As noted on page six, Iowa held a special legislative election on August 8, at which a Libertarian ran. That Libertarian, Joshua Miller, was the subject of a vigorous attempt to remove him from the ballot, but he survived it. The Libertarian Party is ballot-qualified, so it was permitted to nominate by convention. A Republican activist, Marshan Roth, attended the convention and secretly video-taped it. Then he filed a challenge. He said that there was no motion to nominate Miller, so the nomination was void.

But on July 20, a state panel determined that the nomination was valid, because there was a call for any nominations other than Miller (there were none), and then there was a secret ballot. The objector also claimed that the attendees to the convention were not chosen by precinct caucuses, but that objection was also overridden, because such caucuses are held early in even-numbered years, and the Libertarian Party wasn’t qualified in early 2016.

As previously reported, both houses of the North Carolina legislature have passed SB 656, the bill to greatly improve ballot access. However the versions in each house differ, so the bill isn’t through the process. Legislators now indicate they will take up the bill in October 2017. The legislature went into recess on August 30 after having passed new redistricting plans for the legislature.

On August 21, the committee in the Parliament of India that handles election law sent out a questionaire to all political parties, asking for opinions as to whether India should switch from "winner-take-all" elections, to proportional representation.

On August 25, U.S. District Court Judge William Zloch, a Reagan appointee, issued a 28-page opinion dismissing Wilding v Democratic National Committee, s.d. Florida, 0:16cv-61511. This is the case filed last year by Bernie Sanders supporters who had donated to the Democratic Party. They presented evidence that the national party had not been neutral between Hillary Clinton and Sanders. The judge dismissed the case on standing grounds, and technical grounds involving class actions. He also wrote, "Not one of the plaintiff donors alleges that they ever read the DNC’s charter (which said the party would be neutral) or heard the statements they now claim are false before making their donations." It is likely the plaintiffs will appeal.

On August 16, the Fifth Circuit agreed with a U.S. District Court that Texas cannot require interpreters at the polls to be registered voters in the same county. The case had been filed by a voter who only spoke Chinese. She wanted her 16-year-old grandson to interpret for her, but he was not permitted to do that because he was not old enough to vote. Organization for Chinese Americans v State, 16-51126.

When the August 1 BAN table on amount of donations for political parties from state income tax returns was published, the 2017 data wasn’t yet available for Rhode Island and Virginia, so that chart used the 2016 data from those two states as place-holders. The actual 2017 amounts for Rhode Island are: Democratic $9,160; Republican $3,166; Moderate $440. For Virginia: Democratic $10,900; Republican $3,473.

Three lawsuits, filed in 2016, are still pending over whether presidential electors have a right to vote for anyone who meets the constitutional qualifications to be president. The California lawsuit had an oral argument on August 17 in which the state tried to persuade the judge that the case is moot. But U.S. District Court Judge Edward Davila seemed skeptical of the state’s argument. That case is Koller v Brown.

The Colorado disobedient electors who had filed a similar lawsuit last year dismissed that case on August 2, and immediately re-filed a new similar lawsuit. It alleges that they will try to be presidential electors again in 2020. The new case is Baca v Williams, in U.S. District Court.

The third lawsuit, in Minnesota, is pending in the Eighth Circuit. The U.S. District Court had dismissed the case on the grounds that it is moot. Abdurrahman v Dayton.

This chart shows the extreme difference between ballot access barriers for U.S. House. It shows the number of signatures needed in each state for a new party to place a full slate of U.S. House candidates on the ballot, with the party label. Some states have several methods for doing this; the chart lists the easier method. % = number of signatures divided by 2016 presidential vote.

State	No. of Sigs	%	Elec. Code Citation	Formula for No. of Sigs.
Florida	0	0	Title 9, sec. 99.0955	file list of party officers, pay filing fees
Miss.	0	0	23-15-1051	file list of party officers
Wash.	0	0	29A.24.091	pay filing fees
Vermont	20	.00+	Title 17, sec. 2313,2318	have town committees in ten towns
Del	reg. (est.) 675	.15	Title 15, sec. 3002	have registered members, one-tenth of 1% of total reg.
Hawaii	750	.17	Title 2, sec. 12-6	one-tenth of 1% of no. of registered voters
R.I.	1,000	.22	17-14-7	500 signatures per candidate
Colo.	1,000	.04	1-4-801	have 1,000 registered members
La.	1,000	.05	Title 18, sec. 441	have 1,000 registered members
N.J.	1,200	.03	19:13-5	100 signatures per candidate
Iowa	1,500	.10	Title 4, sec. 45.1	375 signatures per candidate
Utah	2,000	.18	20A-8-103	party petition of 2,000 signatures
Kentucky	2,400	.12	Title 10, sec. 118.315(2)	400 signatures per candidate
N.H.	3,000	.40	Title 4, sec. 655:42	1,500 signatures per candidate
Alaska	3,213	1.01	15.25.160	1% of 2016 vote cast
Maine	4,000	.53	Title 21, sec. 494.5	2,000 signatures per candidate
Montana	5,000	1.01	13-10-601	party petition of 5,000 signatures
Wyoming	5,036	1.97	22-4-402(d)	2% of 2016 vote for U.S. House
Nebr.	5,395	.64	32-716	1% of 2014 gub. vote
W. Va.	6,864	.96	3-5-23	1% of 2016 vote for that office
So.Dak.	6,936	1.87	12-5-1	2.5% of 2014 gubernatorial vote
No. Dak.	7,000	2.03	16.1-11-30	party petition of 7,000 signatures
N.Mex.	7,695	.96	1-7-2.A (pty pet + cand. pet.)	Party petition of one-half of 1% + nominee petitions
Minn.	8,000	.27	204B.08	1,000 signatures per candidate
Wisc.	8,000	.28	Title 2, sec. 8.20(4)	1,000 signatures per candidate
Ark.	10,000	.88	7-7-205	party petition of 10,000 signatures
Md.	10,000	.36	4-102(b)(2), 5-302(g)	party petition of 10,000 signatures
Mo.	10,000	.36	Title 9, sec. 115.315	party petition of 10,000 signatures
So. C.	10,000	.48	7-11-70	party petition of 10,000 signatures
Nevada	10,785	.96	Title 24, sec. 293.1715	1% of 2016 U.S. House vote
Virginia	11,000	.28	24.2-506	1,000 signatures per candidate
Idaho	13,809	2.00	34-501	2% of 2016 vote for president
Conn.	15,752	.96	9-453(d)	1% of 2016 vote for that office
Kansas	16,960	1.43	25-302a	2% of 2014 gub. vote
Mass.	18,000	.53	Chap. 53, sec. 6	2,000 signatures per candidate
Ariz.	20,119	.78	16-801(A)	1.33% of 2014 gub. vote
Oregon	22,046	1.10	249.735	1.5% of 2014 gub. vote
Okla.	24,745	1.70	Title 26, sec. 1-109	3% of 2014 gub. vote
Indiana	26,700	.98	3-8-6-3	2% of 2014 vote for Secretary of State
Mich.	31,519	.66	168.685(1)	1% of 2014 gub. vote
Tenn.	33,816	1.35	2-104(27)(b)	2.5% of 2014 gub. vote
Ala.	35,413	1.67	17-6-22	3% of 2014 gub. vote
Texas	47,086	.52	Elec. code 181.006	1% of 2014 gub. vote
Ohio	54,965	1.00	3517.01	1% of 2016 pres. vote
Calif.	reg. (est) 60,000	.42	Elec. code 5100(b)	.33% of no. of registered voters as of Jan. 2018
Penn.	75,211	1.23	Title 25, sec. 2911	2% of winner’s vote 2016 for that office
No. C.	94,221	1.99	163-96	2% of 2016 gub. vote
N.Y.	94,500	1.21	Chap. 17, sec. 6-142	3,500 signatures per candidate
Illinois	262,089	4.73	10 ILCS 5/10-2	5% of 2016 vote for that office
Georgia	272,153	6.61	21-2-170	5% of no. of registered voters as of Oct. 2016

This chart shows, for each state, the last time a minor party or independent candidate won a constitutional ballot access lawsuit. The entries for Alabama and Illinois mention decisions of U.S. District Courts. In both situations, the states have appealed and asked Appeals Courts to reverse those wins. Also, the Arkansas entry was won in the Eighth Circuit, and the state is trying to get the U.S. Supreme Court to reverse it.

STATE	YEAR	CASE NAME AND HOLDING
Ala.	2016	Hall v Bennett: 3% petition in special elections for U.S. House is too difficult
Alas.	1990	Sykes v McAlpine: August 1 is too early for independent candidates to get on ballot
Ariz.	2016	Az. Green Pty v Reagan: June is too early for parties to file presidential elector candidates
Ark.	2017	Moore v Martin: March deadline for non-presidential independents is probably too early
Calif.	2012	Justice Committee v Bowen: January deadline for a new party is too early
Colo.	2000	Campbell v Davidson: state can’t require a candidate for Congress to be a registered voter
Conn.	2016	Libt Party of Ct v Merrill: out-of-state circulators can’t be banned
Del.	1993	Warren v Harper: state can’t require petition signers to list social security number
D.C.	2013	Libt Pty v Danzansky: district can’t ban out-of-state circulators
Fla.	1992	Fulani v Krivanek: state can’t charge to check signatures of minor political party
Ga.	2017	Green Party v Kemp: 1% of registered voters petition is too difficult for president
Hi.	2013	Justice Party v Nago: February is too early for new party to get on ballot for president
Ida.	2010	Daien v Ysursa: state can’t require more signatures for indp pres candidate than for other indps
Ill.	2016	Libertarian Party v State Bd Elec: state can’t require new parties to run a full slate
Ind.	1990	Paul v Election Bd: state must print write-in space on ballot and count write-ins
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: December of year before election is too early for new party to get on ballot
Md.	2016	Dorsey v Lamone: states can’t require more signatures for statewide indp than new party
Mass.	1985	Serrette v Connolly: May deadline for independent candidates is too early
Mich.	1984	Goldman-Frankie v Austin: state must have procedures for indp. candidates for state office
Minn.	2004	Candidacy of Independence v Kiffmeyer: state can’t require minimum number of votes in primary
Miss.	– – –	never
Mo.	2016	Constitution Party v St. Louis Co.: must have procedures for new parties to run for county office
Mt.	2017	Breck v Stapleton: 5% petition (of winner’s vote) is too difficult in special US House elections
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 to get on ballot
N.Y.	2013	Credico v Bd Elections: unqualified parties can engage in disaggregated 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	2014	Libt Pty v Husted: state can’t add new ballot access barriers and have it take effect immediately
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 similar to another party name
Pa.	2016	Constitution Party v Cortes: challenge system combined with big court costs is unconstitutional
R.I.	2011	Block v Mollis: party petition must be allowed to circulate in odd years
So.C.	2006	Working Families Party v Elec. Comm: new parties can’t be required to hold meetings in March
So.D.	2000	Nader 2000 Primary Comm. v Hazeltine: June petition deadline too early for indp. pres. candidates
Tenn.	2012	Green Pty v Hargett: April is too early for new party to get on ballot
Tex.	1996	Texas Indp. Pty v Kirk: indp. petition need not carry each voter’s voter affidavit number
Utah	2017	United Utah Party v Cox: petition deadline of 6 months before spec. elec. is too early
Vt.	2013	Anderson v State: state must allow photocopies of petitions to be submitted to town clerks
Va.	2013	Libt Pty v Judd: state must allow out-of-state circulators
Wash.	2004	Libt Pty v Reed: 1% vote test in primary invalid when party has more than one candidate
W.V.	2016	Daly v Tennant: January is too early for independent candidates to file declaration of candidacy
Wis.	2003	Frami v Ponto: out-of-state circulators must be allowed to petition
Wy.	1997	Spiegel v State: May is too early for new party to get on ballot

The Green Party is on the Pennsylvania ballot for a partisan statewide judicial office, at the November 7, 2017 election. The candidate, Jules Mermelstein, is running for Superior Court Judge. The party needed 2,500 signatures for that office. No other minor party or independent qualified for any of the 2017 statewide partisan races.

Many supporters of Bernie Sanders, along with Socialist Alternative, are holding a national meeting at American University in Washington, D.C., September 8-10. They will discuss forming a new party. See convergence2017.org.

On August 20, Dick Gregory died. He had been the Freedom and Peace Party presidential nominee in 1968. He had been on the ballot in Colorado, New Jersey, New York, Pennsylvania, Rhode Island, and Virginia, and had polled 47,133 votes, placing fifth, behind Richard Nixon, Hubert Humphrey, George Wallace, and Henning Blomen. Gregory outpolled Eldridge Cleaver, nominee of the Peace and Freedom Party. Gregory was the last surviving presidential candidate from the November 1968 election. He died in Washington, D.C., at the age of 84.

On March 23, 2017, Emeryville (California) Mayor Scott Donohue changed his registration from Democratic to Green. He was elected to the city council in 2014 and is serving a four-year term. The council chooses the Mayor, and it chose Donohue in late 2016.

During August, several minor parties participated in special legislative elections in three states.

Iowa: August 8, State House 82: Democratic 4,062; Republican 3,356; Libertarian 72; Constitution 60.

Rhode Island: August 22, State Senate 13: Democratic 2,217; Republican 1,309; independent 74; Green 18.

Washington: August 1, State Senate 48: total for two Democrats 18,337; Libertarian 5,469, placed second.

Washington: August 1, State House48-1: Democratic 17,888; Libertarian 5,222.

The two Washington elections were top-two primaries. Even though, in each race, someone got over 50%, the same candidates must run again in November 2017.

New York city elects a Mayor on November 7, 2017. Although the state has eight qualified parties, all of which nominate by primary, only the Democratic Party and the Reform Party have contested primaries for that office. The Reform Party primary ballot lists only one name, Sal Albanese. But because some Reform Party voters filed a petition to provide that write-ins be counted for that office, election officials will tally all write-ins in that Reform Party primary. The Reform Party has fewer than 1,000 registered members in New York city. However, the party is allowing independent voters to vote in its primary. The primary is September 12.

Rocky De La Fuente had petitioned for a place on the Republican primary ballot for Mayor, but he was told that he didn’t have enough valid signatures, even though his petitioners had gone door-to-door, seeking out registered Republicans, and even though his campaign had validated his petition before it was submitted.