SEVENTH CIRCUIT INVALIDATES ILLINOIS LAW REQUIRING NEW PARTIES TO RUN A FULL SLATE OF CANDIDATES

LAW HAD INJURED MINOR PARTIES FOR 86 YEARS

On September 22, the Seventh Circuit ruled that the Illinois law requiring newly-qualifying parties to run a full slate of candidates is unconstitutional. Libertarian Party of Illinois v Scholz, 16-1667.

The decision is by Judge Diane Sykes, a Bush Jr. appointee, and is signed by Judges Frank Easterbrook and Michael Kanne, Reagan appointees. In 2016 the lower court had also invalidated it, and the state had appealed. The state wanted to win this appeal so badly, it had six attorneys at the oral argument in the Seventh Circuit in February this year (normally, in an appeals hearing, neither side has more than one or two attorneys at the table).

The full-slate law has injured minor parties ever since it was passed in 1931. Starting in 1934, it was used to force minor parties to run a full slate of three candidates for State Representative in each district that the party contested.

At the time Illinois used cumulative voting for State Representative. The Democratic and Republican Parties were free to run either three nominees, two nominees, or one nominee, in any district. If a major party had only one nominee, then a voter could cast all three of his or her votes for that one nominee. This made it possible for a party to win one seat, even in a district in which it was not in the majority. If the party ran two nominees, voters could cast one and one-half votes for each of the two nominees. But no minor party was permitted to do that; they all had to have three nominees. After 1926, and until cumulative voting was repealed in 1980, the Democratic and Republican Parties were the only ballot-qualified parties in Illinois.

The Communist Party had a very strong state house candidate in 1932, Claude Lightfoot. He polled 33,337 votes in the Cook County district 5 seat, coming close to winning. The Communist Party did not run any other candidates in that district, so his voters could give him three votes, thus boosting his chances of winning. Although the 1931 law required the Communists to run three candidates, thus diluting its vote in that district, no one challenged the Lightfoot petition, which had no other Communist candidates in that district, so he still got on the ballot. But in 1934, major party figures started challenging Communist petitions, and Lightfoot was knocked off the ballot in 1934.

The full-slate law injured the Socialist Labor Party in 1964. The SLP was the only party that even tried to get a slate of statewide candidates on in Illinois that year. The SLP ran its normal full slate of statewide offices, including President and Governor, as it had always done, to obey the full-slate law. But the SLP didn’t realize that it was also required that year to run 118 candidates for State Representative, because that year, all the seats up in the State House were being elected at-large.

This peculiar election was caused by the fact that the state’s house districts had been held unconstitutional (because they weren’t equal in population) and the legislature had done nothing about drawing new ones. Because the SLP was off the ballot, 1964 was the only year in the history of Illinois government-printed ballots that the Republican and Democratic presidential nominees were the only presidential candidates on in Illinois.

The full-slate law injured the Socialist Workers Party in 1972. The party petitioned for a full slate, but its presidential nominee, Linda Jenness, was challenged off the ballot because she was under age 35. Therefore, under the full slate law, all the party’s other statewide candidates were also off the ballot.

In 1986, the full-slate law injured the Illinois Solidarity Party, and the Democratic Party. Adlai Stevenson had formed the Solidarity Party to get on the ballot in the general election for Governor. He had won the Democratic primary that year, but because a supporter of Lyndon LaRouche had won the Democratic primary for Lieutenant Governor, and because Illinois forces nominees for Governor and Lieutenant Governor to run as a team in November, Stevenson resigned from the Democratic ticket and put his own party on the ballot. Stevenson couldn’t be an independent candidate because the deadline for independent candidates had already passed.

Because of the full-slate law, Stevenson’s party had to run for all statewide offices, which hurt the other Democratic nominees. The Solidarity candidates (other than Stevenson) asked the voters not to vote for them, but to vote for the Democratic nominees. This mess damaged the morale of Stevenson’s campaign, and he received only 40%. The Democratic ticket of no one for Governor and the LaRouche supporter for Lieutenant Governor polled 7%.

In 1990 the Harold Washington Party had sued to overturn the full-slate law, and in 2004 the Green Party had sued to overturn it. But both times, the Illinois state courts upheld the law.

On Saturday, September 16, the California legislature passed SB 568, which moves all primaries from June to the first week in March. Governor Jerry Brown has until October 15 to act on the bill. If it becomes law, the California top-two system will be in legal jeopardy. The U.S. Supreme Court has ruled three times that there must be some route onto the general election ballot that is still open for use in the election year itself. But under SB 568, all possible methods for getting on the November ballot will be foreclosed after early December of the year before the election.

That is because California’s top-two system, which has been in effect since 2011, does not permit anyone on the November ballot (other than President) except the two people with the highest vote totals in the primary. If the primary is in March, then the deadline for getting onto the primary ballot is in December of the year before the election. The top-two law has no effect on presidential elections, but covers Congress and partisan state office.

In 1968, the U.S. Supreme Court ruled in Williams v Rhodes that Ohio law, which did not permit a new party to get on the ballot unless it submitted a hefty petition by February of the election year, and which had no provision for independent presidential candidates, was unconstitutional. The American Independent Party, one of the plaintiffs in that case, had successfully completed the new party petition, but not until July, five months after the deadline, so the real issue in that case was the February deadline.

In 1977, the U.S. Supreme Court summarily affirmed a 3-judge U.S. District Court decision, Lendall v Jernigan, that an April deadline was too early for non-presidential independent candidates

In 1983, the U.S. Supreme Court ruled in Anderson v Celebrezze that a March deadline is too early for independent presidential candidates, even if the signature requirement is very easy (in that instance, the Ohio petition requirement was only 5,000 signatures, approximately one-tenth of 1% of the last vote cast).

In 2012, the Libertarian Party lost a lawsuit in the Ninth Circuit to overturn the Washington top-two system. The party presented evidence showing that top-two systems always keeps minor party candidates off the November ballot, unless only one major party person runs in that same race (that observation is still true today). In that case, Washington State Republican Party v Washington State Grange, the Ninth Circuit said that keeping all minor parties off the November ballot is just a "slight burden" because they could run in the late August primary. The Ninth Circuit said that in August, voter interest in the election is "near its peak." But the Ninth Circuit said the case would be different if the primary were substantially earlier. It wrote, "the primary is in August, not March."

On September 11, the California legislature passed AB 469, to reduce the number of signatures needed in lieu of the filing fee. The existing law requires 10,000 for statewide office; 3,000 for State Senate and U.S. House; and 1,500 for Assembly. The bill lowers these to 7,000 for statewide office; 2,000 for State Senate and U.S. House; and 1,000 for Assembly. The bill also lets these petitions start to circulate two weeks earlier than under the existing law. However, it will no longer be possible to submit supplemental petitions if the original petition lacks enough valid signatures.

These in lieu of petitions need not be completed. Every valid signature on such a petition reduces the filing fee proportionately. The filing fee is 2% of the annual salary for statewide office, and 1% for district office.

On September 11, the California legislature passed AB 837, which sets out duties for election officials to fully inform independent voters that certain parties let independent voters participate in that party’s presidential primary. If the California top-two system is ever repealed, the same bill covers primaries for office other than president.

On September 15, the legislature passed SB 149, which does not permit anyone to be on a presidential primary ballot who doesn’t release income tax returns for the last five years.

Several California ballot access cases recently received hearing dates. The Ninth Circuit will hear Independent Party v Padilla, 16-15895, on November 13 in San Francisco. This is the case that challenges the Secretary of State’s refusal to let the Independent Party become a political body. A "political body" is a group that wants to qualify as a party, and wants to know how many registered voters it has. Because the Secretary of State won’t let it be a political body, no one knows if it has enough registered members to be a qualified party. If it has approximately 60,000, then it will qualify.

A U.S. District Court in Los Angeles will hear De La Fuente v Padilla, 2:16cv-3242, on October 2. This is the case that challenges the law that requires independent presidential candidates to submit almost 200,000 signatures.

The Ninth Circuit will hear Soltysik v Padilla, 16-55758, sometime in January 2018. The hearing would have been in December, but the attorneys on both sides were not available for any date in December. The issue is ballot labels for members of unqualified parties.

On August 30, a U.S. District Court upheld the Secretary of State of Alabama, who in 2016 had removed Rocky De La Fuente from the November ballot as an independent candidate, on the grounds that he had run in the 2016 Democratic presidential primary. De La Fuente v Merrill, m.d., 2:16cv-755.

Alabama put Lyndon LaRouche on the November 1992 ballot as an independent candidate, even though he had run in the 1992 Democratic presidential primary. The "sore loser" law has not changed since 1992. The decision does not discuss this point.

The decision ignores all the history of past presidential candidates who had run in numerous presidential primaries and then run as independents or the nominees of new or minor parties. They include Theodore Roosevelt, Robert La Follette, and John Anderson. Anderson had run in twenty Republican presidential primaries in 1980, and no state had kept him off the ballot as an independent in November.

De La Fuente had argued that sore loser laws can’t apply to federal office, because the U.S. Constitution sets for the requirements to run for federal office, and says nothing about whether the candidate had earlier sought the nomination of a party. Judge W. Keith Watkins wrote, "At root, the sore loser law regulates how to access the ballot, not who can access it."

One could have made the same argument to defend laws imposing congressional term limits. The U.S. Supreme Court had struck down Arkansas’ law on term limits in 1995, even though that law only regulated ballot access for three-term members, and let them be write-in candidates. One could say the Arkansas law was just a law on how to access the ballot, not a qualification.

The Fifth, Ninth, and Tenth Circuits have all ruled that states can’t force congressional candidate to be registered voter. But applying Judge Watkins’ argument, one could say that forcing a candidate to be a registered voter is only a law "telling the candidate how to access the ballot."

On September 21, the Ohio State Appeals Court issued a 35-page opinion in Libertarian Party of Ohio v Husted, 16AP-496. The issue was whether the harsh 2013 ballot access law for newly-qualifying parties violates the Ohio Constitution. The Libertarian Party lost its status as a qualified party in November 2014, and needs 54,965 valid signatures to regain it for 2018. It had filed this lawsuit in state court in 2016, arguing that the new law violates this provision of the Ohio Constitution: "All nominations for elective state, district, county and municipal offices shall be made at direct primary elections or by petition as provided by law." This sentence has been in the Ohio Constitution since 1908.

The 2013 law says new parties cannot have a primary. The party argued that this part of the constitution requires that all parties have a primary, but the court disagreed. The opinion says the words "or by petition" means that the legislature may abolish primaries for any party and instead provide that their nominees get on the ballot by petition. The party had argued that "petition" refers only to independent candidates.

The opinion says nothing about the history of that part of the Ohio Constitution. Any student of Ohio political history knows that that sentence was added to force the legislature to create primaries for the qualified parties. During 2017, the state courts of Ohio have done a very bad job of interpreting the election code, relative to minor parties. The Libertarian Party will seek to complete its petition by the July 2018 deadline. The party has 30,000 signatures and needs approximately 95,000.

The California Republican Party will hold a state convention at the Marriott Hotel in Anaheim, October 20-22. The party will vote on a resolution to oppose the top-two system that has existed in California since 2011. If the resolution passes, it will be easier to mobilize the party to help get the initiative on the ballot that repeals top-two. The petition can’t start to circulate until mid-October at the earliest.

What Happened, by Hillary Rodham Clinton, 2017, Simon & Schuster, 494 pages.

This book is so well-known, and has been so extensively reviewed in so many publications, that this review will confine itself mostly to what the book tells us about Hillary Clinton’s attitudes and beliefs about the U.S. election system.

Clinton’s ideas matter. She is still very influential in the Democratic Party. Her book is a best-seller. In October she is going on a book tour, and most of the venues are already sold out. She received the third-highest vote total for a presidential candidate in U.S. history (only Barack Obama’s 2008 and 2012 totals were higher). No Republican has ever received as many votes as she did.

She wants people who read her book to influence policy. The Author’s Note says the book is partly about what Americans can do to improve the nation. She also writes, "The lessons we draw from 2016 could help determine whether we can heal our democracy."

But, the book gives no guidance to readers who want to improve that democracy. This is most striking in two particular areas of election law.

The first area is the electoral college. The book is very critical of the electoral college. It says on page 378 that the electoral college is "totally nuts". Page 386 says it is "godforsaken." Page 387 says it makes a mockery of the principle of "One person, one vote." I agree with her.

But, the book, which will be read by millions, gives readers no information about what readers who agree with her can do about the electoral college. The book would be far more useful if it had mentioned the movement for the National Popular Vote, which is the most practical movement in existence for actually changing the electoral college.

If Democratic legislators and Governors would whole-heartedly support the National Popular Vote plan, it would be advancing. During 2017, the plan was considered in the Oregon and Connecticut legislatures. Those states have Democratic majorities in both houses, and Democratic governors. The bill didn’t pass in either state because too many Democratic legislators wouldn’t support it. An explanation of the plan in the book, and a strong endorsement, would probably make a big difference.

The second area of election law in which the book disappoints concerns "spoilers". Clinton writes on pages 411-412, "A small but still significant number of left-wing voters may well have thrown the election to Trump. Jill Stein, the Green Party candidate…wouldn’t be worth mentioning, except for the fact that she won 31,000 votes in Wisconsin, where Trump’s margin was smaller than 23,000. In Michigan, she won 51,000 votes, while Trump’s margin was just over 10,000. In Pennsylvania, she won hearly 50,000 votes, and Trump’s margin was roughly 44,000. So in each state, there were more than enough Stein voters to swing the result, just like Ralph Nader did in Florida and New Hampshire in 2000."

Clinton describes herself in the book as a "policy wonk." Any policy wonk surely knows about Ranked-Choice Voting. Last year, the voters of Maine voted to use it in future elections. It has been used in a number of cities in the United States for many years, and a variant of it has been in use in Cambridge, Massachusetts, since the 1930’s. It exists in Australia, Ireland, Papua New Guinea, and for Mayoral elections in London, England. If Clinton had explained to her readers that a cure for the "spoiler" problem exists, she could have given the movement for alternate voting systems a strong boost. But her book does not mention Ranked Choice Voting (the book has an excellent index).

There are millions of U.S. voters who are upset that U.S. election laws and practices prop up the Republican and Democratic Parties, and discriminate against independent candidates and the nominees of other parties. A major party presidential nominee who championed a call for reform would gain the gratitude and sympathy of these voters.

Regardless of these flaws in the book, it is well worth reading for anyone interested in U.S. politics and history. Books by defeated presidential candidates, discussing their analysis of why they lost, are rare. The other presidential candidates of the 20^th century whom virtually everyone expected to win, Thomas E. Dewey in 1948 and Charles Evans Hughes in 1916, not only didn’t write a book about their loss, but said very little about it.

According to the only biography of Dewey, Thomas E. Dewey and His Times, by Richard N. Smith, Dewey took his unexpected 1948 defeat with silence. The book says, "Dewey rarely mentioned 1948 in the years thereafter. It was like a locked room in a musty mansion whose master never entered to undrape the chairs or allow sunshine to filter in."

However, Richard Nixon wrote Six Crises in 1962, and has a chapter about what it was like to lose the 1960 election.

The lawsuit concerning general election debates called Level the Playing Field v Federal Elections Commission, pending in U.S. District Court, is moving ahead. Both sides have filed motions for Summary Judgment. Both sides agree that no more fact-finding is needed, and that as a matter of law, they should prevail. If the plaintiffs win, the U.S. District Court will determine that the Commission on Presidential Debates is breaking federal campaign finance law, and must ease its rules on who may debate.

The chart below shows the dates of each state’s congressional primary, for the last 100 years. Only the years of 1918, 1938, 1958, 1978, 1998, and 2018, are included. They show that the median primary date had been little changed, for the entire period 1918 through 1978. In all the years featured the median date was always in August. But, during the last forty years, there has been a dramatic shift to earlier congressional primaries in midterm years. In 2018 the median date is June 12. And this does not include the pending California change from June to March, which will occur effective after 2018, assuming the Governor signs the bill.

The reason for the change is partly the federal law that requires states to mail overseas absentee ballots no later than 45 days before any federal primary. That law has made September primaries somewhat impractical, so that for 2018 there are only four states left with September primaries.

Some believe that earlier primaries for Congress and state office are harmful to challengers, and good for incumbents. Several California journalists have expressed that view recently, in articles that oppose moving the primary to March. But these opinion pieces do not cite any scholarly evidence. Massachusetts has always had September primaries, and incumbents get re-elected in Massachusetts at a high rate.

State	1918	1938	1958	1978	1998	2018
Alabama	August 13	May 3	May 6	September 5	June 2	June 5
Alaska	April 30	April 26	August 26	August 22	August 25	August 21
Arizona	September 10	September 13	September 9	September 12	September 8	August 28
Arkansas	– – –	August 9	July 29	May 30	May 19	May 22
California	August 27	August 30	.June 3	June 6	June 2	June 5
Colorado	September 11	September 13	September 9	September 12	August 11	June 26
Connecticut	– – –	– – –	no primary	September 12	September 15	August 14
Delaware	– – –	– – –	no primary	September 9	September 12	September 6
Florida	June 4	May 3	September 9	September 12	September 1	August 28
Georgia	September 11	September 14	September 10	August 8	July 21	May 22
Hawaii	September 14	September 10	October 4	October 7	September 19	August 11
Idaho	– – –	August 9	August 12	August 7	May 26	May 15
Illinois	September 11	April 12	April 8	March 21	March 17	March 20
Indiana	March 5	May 3	May 6	May 2	May 5	May 8
Iowa	June 7	June 6	June 2	June 6	June 2	June 5
Kansas	August 6	August 2	August 5	August 1	August 4	August 7
Kentucky	August 3	August 6	May 27	May 23	May 26	May 22
Louisiana	September 10	September 13	August 23	September 16	– – –	– – –
Maine	June 17	June 20	June 16	June 13	June 9	June 12
Maryland	September 9	September 12	May 20	September 12	September 15	June 26
Mass.	September 24	September 20	September 9	September 19	September 15	September 4
Michigan	August 27	September 13	August 5	August 8	August 4	August 7
Minnesota	June 17	June 20	September 9	September 12	September 15	August 14
Mississippi	August 20	August 23	August 26	June 6	June 2	June 5
Missouri	August 6	August 2	August 5	August 8	August 4	August 7
Montana	August 27	July 19	June 3	June 6	June 2	June 5
Nebraska	August 20	August 9	May 13	May 9	May 12	May 15
Nevada	September 3	September 6	September 2	September 12	September 1	June 12
New Hamp.	September 3	September 13	September 9	September 12	September 8	September 11
New Jersey	September 24	September 20	April 15	June 6	June 2	June 5
New Mex.	– – –	– – –	May 13	June 6	June 2	June 5
New York	September 3	September 20	August 12	September 12	September 15	June 26
No. Car.	June 1	June 4	May 31	May 2	September 15	May 8
No. Dakota	June 26	June 28	June 24	September 5	June 9	June 12
Ohio	August 13	August 9	May 6	June 6	May 5	May 8
Oklahoma	August 6	July 12	July 1	August 22	August 25	June 26
Oregon	May 17	May 20	May 16	May 23	May 19	May 15
Pennsyl.	May 21	May 17	May 20	May 16	May 19	May 15
Rhode Is.	– – –	– – –	September 17	September 12	September 15	September 11
So. Caro.	August 27	August 30	June 10	June 13	June 9	June 12
So. Dakota	June 26	May 3	June 3	June 6	June 2	June 5
Tennessee	August 1	August 4	August 7	August 3	August 6	August 2
Texas	July 27	July 23	July 26	May 6	March 10	March 6
Utah	– – –	– – –	September 9	September 12	June 23	June 26
Vermont	September 17	September 13	September 9	September 12	September 8	August 14
Virginia	– – –	August 2	July 15	June 14	June 9	June 12
Washington	September 10	September 13	September 9	September 19	September 15	August 7
West Va.	August 6	August 2	August 5	May 9	May 12	May 8
Wisconsin	September 3	September 20	September 9	September 12	September 8	August 14
Wyoming	August 20	August 16	August 19	September 12	August 18	August 21
MEDIAN	August 20	August 9	August 5	August 8	July 21	June 12
RANGE	203 days	161 days	179 days	200 days	193 days	189 days

On September 21, Maine Representative Ralph Chapman of Brooksville, an expert on solar energy, announced that he had changed his registration from independent to Green. He was first elected in 2010 as a Democrat, and had been re-elected as a Democrat in 2012 and 2014. On May 26 he had changed his registration to independent. He is the first Green Party state legislator anywhere in the U.S. since 2012, when Arkansas voters elected Fred Smith, the Green Party nominee, to the State House. However, after Smith won, he became a Democrat.

On September 13, Nebraska State Senator Bob Krist changed his registration from Republican to independent. He plans to run for Governor in 2018, either as an independent or as the nominee of a new party, which would probably be called the Unity Party. He was first elected in 2010 and represents Omaha.

On September 7, Androscoggin County Commissioner Zachery Maher, of Maine, changed his registration from Republican to Libertarian. He had been elected in 2016 as a Republican, and his term expires in 2020.

On September 22, Maine State Representative Martin Grohman changed his registration from Democratic to independent. He is in his second term. The Maine House now has 74 Democrats, 70 Republicans, five independents, one Green, and one vacancy.

On August 26, Lacey Putney died at the age of 89. He had been elected to the Virginia House every two years as an independent in all elections 1967 through 2011. In 2013 he had retired. Before he was an independent, he had been elected as a Democrat, so that he had served a total of 52 years in the legislature.

The Utah Green Party is again ballot-qualified. The last time it was on the ballot as a qualified party was in 2006. It went off the ballot in November 2006 because it didn’t poll as much as 2% for any statewide race. The only race up in 2006 had been U.S. Senate. The party regained its status recently by submitting 2,000 valid signatures. It must poll 2% for U.S. Senate in 2018 to keep that status. There are no other statewide races in 2018. When a party meets the vote test, it is then on the ballot for four years. Thus, it is better strategy for new parties to qualify in presidential years, when there are five or six statewide offices up.

On August 30, Peter Diamondstone died. In 1970 he had been one of the founders of the Liberty Union Party of Vermont, and had been a nominee for statewide office on that party’s ticket in every election ever since (Vermont elects its statewide state offices every two years). He was age 82. Liberty Union has been continuously ballot-qualified in Vermont longer than any other state unit of a minor party, except that the Conservative Party of New York has been continuously ballot-qualified since 1962; and the American Independent Party has been on in California since 1968. Liberty Union is a left anarchist party. In presidential elections, it usually nominates one of the various socialist party presidential nominees.

The Independent Party of Oregon, which is entitled to its own primary because it has registration above 5%, has decided to again let independent voters participate in its primary in 2018. It also did so in 2016. It is the only party in Oregon in the last hundred years, other than the Republican and Democratic Parties, to have its own primary. Oregon has other ballot-qualified parties but they nominate by convention.