BILLS TO EASE BALLOT ACCESS PENDING IN ELEVEN STATES

INDIANA AND SOUTH DAKOTA BILLS MAKE HEADWAY

Bills to ease ballot access laws are pending in eleven states, and the bills in Indiana and South Dakota have recently made headway.

Connecticut: HB 7163 would repeal the ban on out-of-state circulators. The state already lost in court on this issue, and the bill would merely conform the code to actual policy.

Georgia: SB 112 would abolish mandatory ballot access petitions for independent candidates and the nominees of unqualified parties. The ballot would only be regulated by payment of filing fees. This bill was introduced last year and is still pending.

Hawaii: SB 462 and HB 294 would repeal the requirement that petitions include the Social Security number of signers. They were introduced last year and are still pending.

Indiana: SB 328 makes substantial improvements to ballot access. It lowers the statewide petition for independent candidates and the nominees of unqualified parties from 2% of the last vote cast for Secretary of State (usually about 35,000-40,000 signatures) to exactly 4,500 signatures. Also, for the first time in Indiana history, the bill sets up a party petition for use by unqualified parties. A "party petition" does not name any candidates. It is just a petition to qualify a new party, which, after completing the petition, would nominate candidates by convention. The bill passed the Senate Elections Committee on January 22, by a vote of 6-3. It takes effect in 2019.

Nebraska: LB 969 lowers the number of signatures for a non-presidential independent from 10% of the registered voters, to 4,000 (for statewide office) and 2,000 (U.S. House). It was introduced this year.

Illinois: HB 762 would ease the definition of "political party" from a group that got 5% in the last election, to 2%. It would also lower the statewide petition for independent candidates and the nominees of unqualified parties from 25,000 to 10,000 signatures; and it would lower the district petitions from 5% to 2%. It was introduced last year and is still pending.

New Hampshire: several bills ease the definition of "political party". Currently a party is a group that polled 4% for Governor or U.S. Senator. HB 1568 would also recognize a group if it persuaded 1% of the voters to register into the party. HB 1448 would keep the current 4% vote test, but extend it to either of the U.S. House races.

Also in New Hampshire, HB 1239 would let voters sign a new party petition, even if the same voter had already signed such a petition for another new party.

Oklahoma: SB 350 would ease the definition of "political party" from a group that got 2.5% for President or Governor, to one that got 2.5% for any statewide race at either of the last two elections. It was introduced in 2017 and passed the Senate and the House Committee in 2017, and is pending in the House.

Also, SB 1038 would reduce the filing fee to one-fourth of the usual amount if the candidate’s income puts him or her below the federal government’s poverty level. It would let such a candidate avoid any fee if a petition of one-half of 1% of the voters were submitted.

Tennessee: SB 770 and HB 662 ease the number of signatures for a new party from 2.5% of the last gubernatorial vote (generally about 40,000 signatures) to exactly 5,000.

South Dakota: HB 1012 passed the House Local Government Committee on January 24. It eases the definition of "political party" from a group that polled 2.5% for any statewide race at the last election, to 2.5% for any statewide race at either of the last two elections. SB 79 passed the Senate on January 23. It lets independent voters sign petitions to place someone on a primary ballot. A third helpful bill will soon be introduced.

Virginia: HB 540 eases the definition of "political party" from a group that got 10% for any statewide race at either of the last two elections, to 3%. Similar bills introduced by Democrats have failed in past sessions of the legislature, but this bill has a Republican sponsor, Delegate Nicolas Freitas of Culpeper. Republicans have majorities in both houses of the legislature.

Supporters of Ranked Choice Voting in Maine have collected more than the required 61,123 valid signatures to force a referendum vote in November on the 2017 bill that repealed RCV. As a result, Maine will use RCV for its June 2018 primaries for all federal and state office, and for federal office in November. When a referendum petition gets enough valid signatures, the bill that the legislature had passed is suspended until the public votes on the law. Because the voters passed RCV in 2016, and no court has invalidated it for primaries, or for federal office, it is the law, at least until the public votes on the 2017 bill that repealed RCV.

The deadline for the petition is February 4, but it was completed before the deadline.

On January 4, the Virginia Board of Elections agreed to settle the lawsuit De La Fuente v Alcorn, e.d., 1:16cv-1201. The Board signed a consent decree, saying it will revise the presidential general election petition so that it no longer asks signers to add the last four digits of their Social Security number. The Board also will no longer require candidates for presidential elector to expose their entire Social Security number to anyone except the Board of Elections.

It is expected that the Board will eliminate the SSN column on all petition forms, not just the presidential one. The column was always voluntary, but the evidence in the lawsuit showed that just the existence of the column was enough to make many individuals refuse to consider signing the petition. This is the first general election ballot access lawsuit that Rocky De La Fuente has won so far. He still has cases pending in Arizona, California, Pennsylvania, and Washington. He was an independent presidential candidate in 2016, as well as the Reform Party’s presidential nominee.

On January 11, attorneys for Pennsylvania, appearing at a status conference in U.S. District Court, agreed to drop the county distribution requirement for statewide petitions. The old requirement, created in 2016, said a statewide petition for certain offices needed at least 250 signatures from each of ten counties (in addition to the 5,000 signatures needed statewide). Last year the Third Circuit issued an opinion suggesting county distribution requirements are unconstitutional, unless the state could show a compelling reason to have them. The state decided further litigation wasn’t worthwhile and deleted the distribution requirement. The lawsuit was Constitution Party of Pennsylvania v Cortes, e.d., 5:12cv-2726.

On January 23, the Florida Secretary of State said an initiative to permit most ex-felons to register to vote has enough valid signatures, and will appear on the November 2018 ballot. It needed 766,200 valid signatures. The proposal would apply to all ex-felons except those convicted of murder and certain violent sex crimes. It needs a popular vote of 60% in order to pass. If it passes, it is estimated that 1,500,000 new voters will be eligible.

If the initiative had not succeeded, the Constitutional Revision Commission would have put the same idea on the ballot.

Most commentary about this presumes that if the measure passes, that will help Democrats, and that is probably accurate. But it will probably also help minor parties and independent candidates. For years, the Florida minor party and independent vote for President has been significantly smaller, as a percentage, than the "other" vote in the nation as a whole. Persons who have been convicted of felonies generally have a greater interest in public affairs than other voters, and are more likely to be interested in alternatives to the two major parties. Here is a chart showing how the "other" vote in Florida for president has been below the national average for 20 years (although it wasn’t in 1992: Florida liked Ross Perot better than the rest of the nation)

YEAR	FLORIDA		NATION
2016	3.15%		5.73%
2012	.86%		1.73%
2008	.75%		1.42%
2004	.81%		1.00%
2000	2.32%		3.75%
1996	9.66%		10.05%
1992	20.10%		19.55%
1988	.62%		.98%

The Florida Constitutional Revision Commission has the power to put proposed amendments on the ballot, with no petition needed, every twenty years, including 2018. Florida currently has closed primaries (except when members of only a single party file for a particular office; then the primary for that office is open to all voters).

Activists who want a semi-closed primary, or a top-two primary, tried to persuade the Commission to put either or both ideas on the 2018 ballot. But on January 19, the subcommittee of the Commission that deals with election law ideas rejected both ideas. It is conceivable, but unlikely, that the full Commission could override the subcommittee.

However, the subcommittee did vote in favor of one change: for those offices that have an open primary because only members of one party filed, the change will be that write-in candidates in the general election for such offices will be deemed to be members of that same party. That change will increase the number of offices for which the primary is open to all voters.

On February 16, the U.S. Supreme Court will consider whether to hear Johnson & Stein v Commission on Presidential Debates, 17-916. The Commission has already told the Court it doesn’t intend to file a response, unless the Court asks it to. So far, the Court has not asked for a response, which is a bad sign. The lawsuit argues that the Commission on Presidential Debates is in violation of the federal anti-trust laws, by effectively blocking all presidential nominees from the general election debates except for the Republican and Democratic nominees.

Hacks, the Inside Story of the Break-ins and Breakdowns That Put Donald Trump in the White House, by Donna Brazile, 2017, Hachette Books, 266 pages.

Donna Brazile was the vice-chair of the Democratic National Committee at the beginning of 2016. She unexpectedly became Acting Chair of the Committee on July 28, 2016, when the Chair, Congressmember Debbie Wasserman Schultz resigned. She became Acting Chair not only just as the party’s national convention was ending, but just after the press had learned that the Committee’s internal documents had been hacked. Big donors to the party, and party employees, had their e-mail and cell phone information made public.

Her book is a very personal account of how her life changed in 2016, how she coped, what she learned about the party’s arrangements with the Clinton campaign, how it interacted with the FBI. Because she is very frank, and because she lived through such interesting and surprising developments, it is not surprising that the book is a very good read. The book would be a great way to get high school students interested in politics and government.

The book has been extensively reviewed elsewhere, so this short review will be limited to an observation about Brazile’s disappointing failure to put any mention in her book of current activism to change the electoral college system. She was campaign manager for the Gore for President campaign in 2000, and she was head of the Democratic Party during 2016. Both those presidential elections are noted by the fact that the Democratic nominee for president placed first in the popular vote, but lost in the electoral college.

Because she was a high party official in both years, one would expect a section of the book on the electoral college, but there is no such content.

If there is any voting rights issue that the Democratic Party ought to be concerned with, it is surely the electoral college, which has victimized that party five times (1824, 1876, 1888, 2000, and 2016). Brazile’s book is a best-seller, and if she had mentioned the campaign for the National Popular Vote, she would have given it a considerable boost. If Democratic state legislators were uniformly in favor of the plan, it would have made progress in 2017. Democratic legislatures in Connecticut and Oregon defeated the plan in their own states.

Arkansas: on January 25, U.S. District Court Judge James M. Moody, Jr. issued an opinion in Moore v Martin, e.d., 4:14cv-65, explaining why he had ruled on December 15, 2017, that the March 1 independent candidate petition deadline is unconstitutional.

Illinois: on January 18, the Seventh Circuit issued an opinion in Segovia v U.S., 16-4240. The plaintiffs are U.S. citizens who live in Puerto Rico, the U.S. Virgin Islands, or Guam. They cannot vote absentee in Illinois elections, even though they were formerly residents of Illinois and had been voting there. Ironically, former Illinois residents who move to the Northern Mariana Islands or American Samoa can still vote absentee in Illinois, due to an obsolete Illinois election law written before the Northern Mariana Islands were a U.S. possession.

Pennsylvania: on January 22, the Pennsylvania Supreme Court ruled 5-2 that extreme partisan gerrymandering violates the State Constitution. It ordered new districts to be drawn up by early February. If the legislature doesn’t do that, the Court will draw new districts. League of Women Voters v Commonwealth, 159 MM 2017.

Michigan: on January 19, U.S. District Court Judge Gershwin Drain ruled that a trial will be held to settle whether the state violated the U.S. Constitution when it repealed the straight-ticket device in early 2017. Michigan A. Philip Randolph Institute v Johnson, e.d., 2:16cv-11844. The plaintiffs argue that the repeal discriminates against African-American voters. They also argue that because Michigan doesn’t have no-excuse voting (also known as early voting), the lines to vote on election day in Michigan are frequently very long, and repeal of the device will make the problem worse. The state is free to provide for early voting if it wishes.

North Carolina: on January 3, the Constitution Party filed a lawsuit against a state campaign finance law that lets voters donate more money to a qualified party than to an unqualified party. Constitution Party of North Carolina v Strach, w.d., 3:18cv-6. The party argues that a donor who wishes to help the party complete its ballot access petition has already given the maximum permitted by law, but that he would give more if he could.

The chart below shows the dates of 2018 primaries. The only state in which the congressional primary is a different date than the primary for state office is New York; the chart shows the congressional primary date for New York. It is likely that a few states’ primary dates will change in the next few weeks.

State	Date	Election Code	Formula for Setting Date
Alabama	June 5	17-13-3	first Tuesday in June
Alaska	August 21	15.25.020	third Tuesday in August
Arizona	August 28	16-201	tenth Tuesday before general election
Arkansas	May 22	7-7-203(b)	three Weeks before 2nd Tues. in June
California	June 5	Election code sec. 1000	first Tuesday after first Monday in June
Colorado	June 26	1-4-101	fourth Tuesday in June
Connecticut	August 14	9-423	second Tuesday in August
Delaware	September 6	Title 15, sec. 3101(3)	date named in law
Dist. Columbia	June 19	1-1001.10	third Tuesday in June
Florida	August 28	100.061	ten weeks before general election
Georgia	May 22	21-2-150	twenty-four weeks before general election
Hawaii	August 11	12-2	second Saturday in August
Idaho	May 15	34-601	third Tuesday in May
Illinois	March 20	10 ILCS 5/2A-1.1	third Tuesday in March
Indiana	May 8	3-10-1-3	first Tuesday after first Monday in May
Iowa	June 5	43.7	first Tuesday after first Monday in June
Kansas	August 7	25-203	first Tuesday in August
Kentucky	May 22	118.025(3)	first Tuesday after third Monday in May
Louisiana	No primary	– –	– –
Maine	June 12	Title 21A, sec. 339	second Tuesday in June
Maryland	June 26	8-201(a)	last Tuesday in June
Massachusetts	September 4	Chap. 53, sec. 28	set by Secretary of State to avoid religious holiday
Michigan	August 7	168.535	first Tuesday after first Monday in August
Minnesota	August 14	204D.03	second Tuesday in August
Mississippi	June 5	23-15-1085	first Tuesday in June
Missouri	August 7	115.121	first Tuesday after first Monday in August
Montana	June 5	13-1-107	first Tuesday after first Monday in June
Nebraska	May 15	32-505	first Tuesday after second Monday in May
Nevada	June 12	293.175.1	second Tuesday in June
New Hampshire	September 11	653:8	second Tuesday in September
New Jersey	June 5	19:2-1	first Tuesday after first Monday in June
New Mexico	June 5	1-8-11	first Tuesday in June
New York	June 26	U.S. v State, nd, 1:10cv-1214	Fourth Tuesday in June
North Carolina	May 8	163-1	first Tuesday after first Monday in May
North Dakota	June 12	16.1-11-01	second Tuesday in June
Ohio	May 8	3513.01	second Tuesday in May
Oklahoma	June 26	1-102	last Tuesday in June
Oregon	May 15	254.056	third Tuesday in May
Pennsylvania	May 15	Title 25, sec. 2753	third Tuesday in May
Rhode Island	September 12	17-15-1	2nd Tues. in Sep. or next day if a religious holiday
South Carolina	June 12	7-13-40	second Tuesday in June
South Dakota	June 5	12-2-1	first Tuesday in June
Tennessee	August 2	2-13-202, 2-1-104	first Thursday in August
Texas	March 6	Election code 41.007(a)	first Tuesday in March
Utah	June 26	20A-9-403	fourth Tuesday in June
Vermont	August 14	Title 17, sec. 2351	second Tuesday in August
Virginia	June 12	24.2-515	second Tuesday in June
Washington	August 7	29A.04.311	first Tuesday in August
West Virginia	May 8	3-5-1a	second Tuesday in May
Wisconsin	August 14	5.02(12s)	second Tuesday in August
Wyoming	August 21	22-5-201	first Tuesday after third Monday in August

The chart below shows the last time someone who was neither a Democratic nor Republican nominee was elected to either house of Congress. In six states, there are no instances when someone who wasn’t a Democratic or Republican nominee ever got elected to Congress. Except for Oregon, all are states that were not in the union until 1889 or later.

State	Winner	Chamber	Year	Label	District
Alabama	Milford W. Howard	House	1896	Peoples	7, Gadsden
Alaska	Lisa Murkowski	Senate	2010	write-in	At-large
Arizona	– – –	– –	– –	– – –	– – –
Arkansas	Dale Alford	House	1958	write-in	5, Little Rock
California	Ron Packard	House	1982	write-in	43, Oceanside
Colorado	John C. Bell	House	1900	Peoples	2, Pueblo
Connecticut	Dwight Loomis	House	1861	Union	1, Hartford
Delaware	Nathaniel B. Smithers	House	1863	Unconditional Unionist	At-large
Florida	Edward C. Cabell	House	1850	Whig	At-large
Georgia	Samuel J. Tribble	House	1910	Ind. Democrat	8, Athens
Hawaii	– – –	– –	– –	– – –	– – –
Idaho	Thomas L. Glenn	House	1900	Peoples	At-large
Illinois	Ira C. Copley	House	1914	Progressive	11, Elgin
Indiana	Benjamin F. Shively	House	1884	National	13, South Bend
Iowa	James B. Weaver	House	1886	National	6, Ottumwa
Kansas	Edwin R. Ridgely	House	1898	Peoples	3, southeast Kansas
Kentucky	Oscar Turner	House	1882	Ind. Democrat	1, Paducah
Louisiana	Whitmell P. Martin	House	1916	Progressive	3, Lafayette
Maine	Angus King	Senate	2012	independent	At-large
Maryland	Charles E. Phelps	House	1866	Conservative	3, Baltimore
Mass.	John Joseph Moakley	House	1972	independent	9, Boston
Michigan	Roy O. Woodruff	House	1912	Progressive	10, Bay City
Minnesota	Harold C. Hagen	House	1942	Farmer-Labor	9, northwest Minn.
Mississippi	James R. Chalmers	House	1882	independent	2, Oxford
Missouri	Jo Ann Emerson	House	1996	independent	8, southeast Mo.
Montana	Caldwell Edwards	House	1900	Peoples	At-large
Nebraska	William Neville	House	1900	Peoples	6, northwest Neb.
Nevada	Francis G. Newlands	House	1898	Silver	At-large
New Hamp.	James Pike	House	1855	American	1, eastern N.H.
New Jersey	Garnett B. Adrain	House	1858	Anti-Lecompton Dem.	3, Bergen Co.
New Mexico	Joseph Skeen	House	1980	write-in	2, southern N.M.
New York	James Buckley	Senate	1970	Conservative	At-large
No. Car.	John W. Atwater	House	1898	Independent Populist	4, Raleigh
No. Dakota	– –	– –	– –	– –	– –
Ohio	Frazier Reams	House	1952	independent	9, Toledo
Oklahoma	– –	– –	– –	– –	– –
Oregon	– –	– –	– –	– –	– –
Pennsy.	Thomas M. Fogliatta	House	1980	Fogliatta Party	1, Philadelphia
Rhode Is.	William P. Sheffield	House	1860	Union	1, Providence
So. Carolina	Strom Thurmond	Senate	1954	write-in	At-large
So. Dakota	John E. Kelley	House	1896	Peoples	At-large
Tennessee	Richard Fulton	House	1962	independent	5, Nashville
Texas	Thomas P. Ochiltree	House	1882	independent	7, Corpus Christi
Utah	– –	– –	– –	– –	– –
Vermont	Bernie Sanders	Senate	2012	independent	At-large
Virginia	Virgil Goode	House	2000	independent	5, Charlottesville
Washington	James W. Bryan	House	1912	Progressive	At-large
West Va.	Chester D. Hubbard	House	1864	Unconditional Unionist	1, Wheeling
Wisconsin	Merlin Hull	House	1944	Progressive	9, Eau Claire
Wyoming	– –	– –	– –	– –	– –

The Green Party now has 3,200 signatures on its Montana party petition. The requirement is 5,000, due in March.

In January, the Constitution Party completed its Hawaii petition, and the petition has already been checked by the state, so the party is now on the ballot. Also, the party has 1,200 signatures in North Carolina; the requirement is 11,778 by May 16.

The Libertarian Party has 82,000 signatures on its Ohio party petition. This is the largest number of signatures any party has collected on a party petition in any state (not counting Americans Elect 2011-2012) since 2008, when the Libertarians collected slightly over 100,000 in North Carolina. No party petition has succeeded in Ohio since 2000, when the Libertarian and Natural Law Parties qualified. The Libertarian Party also has 2,000 signatures on its Alabama petition.

The Working Families Party has lost its party status in Vermont. It did not submit the paperwork early this year showing that it has town committees in ten towns.

Russian president Vladimir Putin is running for re-election as an independent. He needed 300,000 signatures. On January 19, he submitted approximately 1,500,000. The election is March 18. Russia requires no signatures for presidential nominees of parties that have representation in the national legislative body. Other parties need 100,000 signatures.

On December 29, Colorado State Senator Cheri Jahn announced that she had changed her registration from Democratic to independent.

The Federal Election Commission always publishes a free book of election returns for all federal office, every two years. The book includes primary results as well as general results, and it tries to be as complete as possible. The name of the book is always Federal Elections (year), so the newest version is Federal Elections 2016. The book is now on-line, and the print version is at the printer’s and will be available very soon. To obtain a copy, phone the FEC at 800-424-9530 and choose option 2.

The FEC personnel who wrote the 2016 book included the November Rhode Island write-ins for President. Rhode Island tallies all write-in votes for individuals who received at least five votes, so the list is quite comprehensive. No other publication that publishes election returns included these write-ins, not even America Votes 32, which is usually also very complete. The January 1, 2018 B.A.N. carried news of the publication of America Votes 32, but erroneously referred to it as America Votes 16.

Willie Wilson, a businessman who lives in Chicago, was one of the lesser-known candidates for the Democratic Party presidential nomination in 2016. He got on the presidential primary ballot in nine states, and tried to get on in others. His campaign would have been on the ballot in more states if the national Democratic Party had recognized him as a "sanctioned" candidate, but the party denied him that status, without giving him any objective criteria. On April 19, 2017, he filed a federal lawsuit against the party for damages. Wilson v Democratic National Committee, D.C., 1:17cv-730. On January 2, 2018, U.S. District Court Judge Trevor McFadden, a Trump appointee, permitted Wilson to file an amended complaint.