SOUTH DAKOTA BALLOT ACCESS BILLS SIGNED INTO LAW

On March 23, South Dakota Governor Dennis Daugaard signed HB 1286, which makes dramatic improvements in how his state treats small qualified parties:

1. It lowers the petition requirement for newly-qualifying parties from 2.5% of the last gubernatorial vote, to 1%. For 2020 the petition drops from 6,936 signatures to 2,775 signatures.

2. It changes the petition deadline from March to July.

3. Most significant, it lets small qualified parties nominate for all office by convention instead of by primary. The reason this is so significant is that old South Dakota laws on how members of small parties get on their own party’s primary ballot were extremely difficult.

Starting in 2007, members of small parties needed 250 signatures of party members to get on their own party’s primary ballot, if they were running for Governor, U.S. Senate, or U.S. House. Although this might seem easy, it was not. Only party members could sign. Finding 250 members scattered across a physically large state, when that party has fewer than 2,000 registered members, was virtually impossible. The Libertarian Party never accomplished this task (except in 1994). The Reform Party never did it. The Constitution Party did it only in 2006. Adding to the difficulty was that these primary petitions could only be circulated from January 1 to late March, during winter.

The bill came into existence because on February 21, a U.S. District Court had struck down the old laws. Libertarian Party of South Dakota v Krebs, now reported as 2018 WL 1027665. But the bill to conform state law to the decision might have been far less beneficial.

Originally the legislature passed a very different version of HB 1286, which said that small parties could nominate by convention, but convention nominees each needed the same burdensome requirement of 250 signatures of party members that the old law had required.

Fortunately, after the repressive version of the bill had passed each house of the legislature, a conference committee of the legislature deleted the requirement for candidate petitions. It is believed that both Governor Daugaard and Secretary of State Shantel Krebs helped to persuade the legislature to improve the bill. Also, the largest newspaper in the state, the Sioux Falls Argus Leader, gave sympathetic coverage to the struggle to improve the bill.

Other states that still have extremely difficult primary petitions, for members of small qualified parties to get on their own party’s primary ballot, are Arizona, Maine, and Massachustts.

Another South Dakota Bill Signed

On March 21, Governor Daugaard also signed another bill that helps minor parties. It says that the vote test to determine whether a party remains on the ballot only needs to be met every four years, instead of every two years. That bill is HB 1012.

On March 2, the South Dakota Secretary of State said that the initiative for a top-two system doesn’t have enough signatures to appear on the 2018 ballot. Thus, 2018 will be the first election year since 2006 with no top-two ballot measure on the ballot in any state.

On March 1, Arkansas State Representative Mark McElroy announced that he is no longer a Democrat, and that he will run for re-election this year as an independent candidate.

On March 7, Kansas State Senator John Doll changed his registration from Republican to independent.

There have now been thirteen state legislators who have left either the Democratic Party, or the Republican Party, during 2017 and 2018. The others have been:

February 2017: Caleb Dyer in New Hampshire switched from Republican to Libertarian.

May 2017: Denise Harlow and Ralph Chapman of Maine switched from Democratic to independent (later Chapman switched to Green). Joseph Stallcop of New Hampshire switched from Democratic to Libertarian.

June 2017: Brandon Phinney of New Hampshire switched from Republican to Libertarian.

September 2017: Bob Krist of Nebraska switched from Republican to independent. Martin Grohman of Maine switched from Democratic to independent.

October 2017: Norman Higgins of Maine switched from Republican to independent.

November 2017: Henry John Bear of Maine switched from Democratic to Green.

December 2017: Cheri Jahn of Colorado switched from Democratic to independent.

February 2018: Solomon Goldstein-Rose of Massachusetts switched from Democratic to independent.

On February 21, a team of elite attorneys sued four states, in separate federal lawsuits. All four lawsuits argue that the winner-take-all aspect of the electoral college violates the U.S. Constitution and the Voting Rights Act. The plaintiffs include voters, but also organizations that represent Hispanic and African-American voters. The four cases were filed in California, Massachusetts, South Carolina, and Texas.

The cases have started to move. Texas will answer the Complaint by April 9, and Massachusetts asked for more time, and will answer by May 21. The California case is Rodriguez v Brown, c.d., 2:18cv-1422. Massachusetts is Lyman v Baker, 1:18cv-10327. South Carolina is BatenvMcMaster, 2:18cv-510. Texas is United Latin American Citizens vAbbott, w.d., 5:18cv-175.

Similar cases have been filed in the past and have not won. But those precedents were prior to the 2000 decision Bush v Gore, 531 U.S. 98, in which the U.S. Supreme Court said, "Having once granted the right to vote on equal terms, the state may not, by later arbitrary and disparate treatment, value one person’s vote over that of another."

On March 27, U.S. District Court Judge Mark E. Walker, an Obama appointee, issued an opinion in Hand v Scott, n.d., 4:17cv-128. He struck down the process by which ex-felons may ask the Governor to restore their voting rights. The current process has no objective criteria for the Governor to make a decision. The lack of standards violates due process. It is not known if the state will appeal. The matter may become partially moot in November 2018. An initiative will appear on the ballot, asking the voters if they wish to amend the Florida Constitution and let most ex-felons register to vote.

California: on March 26, the U.S. Supreme Court refused to hear Independent Party v Padilla, 17-1200. The issue was whether the California Secretary of State should have allowed the Independent Party to try to qualify. The Secretary of State had said the name "American Independent Party" and "Independent Party" are so similar that the Independent Party cannot use that name. However, four times in the past, California has allowed two parties on the ballot which shared a common word in their name. The lower courts had upheld the Secretary of State’s decision. Citizens in Charge had filed an amicus brief, pointing out that 47 states have at one time or another allowed two parties that share a common word in their names to be on the ballot simultaneously.

California (2): on March 6, a Superior Court in San Francisco struck down procedures that permit election officials to discard an absentee ballot if they believe the signature on the ballot doesn’t match the signature on the voter registration card, and not to tell the voter. La Follette v Padilla, 17-515931.

Delaware: on February 21, the plaintiff in Adams v Carney, 1:17cv-181, asked the U.S. District Court to hold the Governor in contempt. Last year the plaintiff, an independent, had won a decision striking down a law that said only members of the two largest parties could be appointed to a judicial post. The state appealed, but did not ask for a stay. In January the Governor appeared to ignore the ruling when he said he would be making two judicial appointments, and that he expected to choose a Democrat for one post, and a Republican for the other.

Montana: on March 7, a candidate for Justice of the Peace asked the U.S. Supreme Court to hear his lawsuit, French v Jones, 17-1255. State law does not permit him to tell anyone that the Republican Party had endorsed him. The lower courts had upheld the law.

Nebraska: on March 27, the plaintiff in the lawsuit challenging the 10% petition for independent candidates withdrew his lawsuit. State Senator Bob Krist had filed the lawsuit on February 1, but later he became a Democrat and said he would seek the Democratic nomination instead of being an independent candidate. Even if he hadn’t withdrawn the lawsuit, he probably would have lost on standing. Any other independent candidate is free to file a new lawsuit. The 10% petition requirement was passed in 2016 and is unconstitutional according to all precedents. Krist v Gale, 8:18cv-39.

Utah: on March 20, the Tenth Circuit issued an opinion in Utah Republican Party v Cox, 16-4091. It agreed with the U.S. District Court that state law, requiring the Republican Party to permit candidates to petition directly onto the party’s primary ballot, is constitutional. The party does not want anyone running in its primary who did not first show substantial support at a party endorsements convention. The vote was 2-1.

The decision also upholds the number of signatures required for a candidate to get on the primary ballot, 2,000 signatures for State Senate, and 1,000 for State House. The party argued, somewhat hypocritically, that those requirements are too high. This was not a convincing argument, because the party was simultaneously saying it didn’t want anyone to use those petitions. The decision says any particular candidate who later files a lawsuit complaining about the high number of signatures might prevail, but the court would not strike down the number of signatures in this lawsuit.

Washington: on March 15, the state appealed the lawsuit De La Fuente v Wyman, 18-35208. The U.S. District Court had struck down the law saying independent presidential candidates can’t start petitioning until a week after they run a newspaper notice, and that they can’t petition in any location different from the location mentioned in the newspaper.

The California Constitution says that all candidates for congress and partisan state office must run in the primary, and only the two candidates who get the most votes may run in November. On March 22, California State Senator Ben Allen introduced SCA 21. It says that write-in candidates in the primary who place second cannot be on the November ballot unless they poll at least 40 write-ins (for U.S. House and legislature). Currently, if the candidate places second, he or she goes on the November ballot, even with one write-in vote.

This year, there are 3 U.S. House races and 14 legislative races with only one person on the primary ballot, so there will surely be write-in candidates in the primary in those districts, with the write-in candidates hoping to outpoll any other write-in candidates and advance to November.

It is common in California for bills to be introduced, and then those same bills are substantially amended later in the process. This bill could become the vehicle for making substantial changes in the top-two system.

Attempts are being made to persuade Senator Allen to amend his bill to propose a return to the blanket primary, which California used in 1998 and 2000. A blanket primary prints all candidates (except independent candidates) on the same primary ballot. Then, the top vote-getter from each party advances to the November ballot. Although the U.S. Supreme Court invalidated California’s blanket primary in 2000 in California Democratic Party v Jones, 530 U.S. 567, that was because it was unconstitutional as applied to any party that objected to letting non-members help choose the party’s nominees. That could be handled if the new bill said that any party that objects to the blanket primary is free not to use it, and instead to nominate by convention.

California: On March 8, Senator Ben Allen introduced SB 935, dealing with fees for candidate statements in the Voters Guide and the sample ballot package. Currently candidates for partisan office may pay to have statements in one of these publications. Election officials mail them to all registered voters, but some counties charge extremely high fees. The bill would give the Secretary of State authority to cap the fees. Green Party activists initiated this bill.

District of Columbia: on March 14, Mayor Muriel Bowser signed bill B22-0192, which creates public funding for candidates. All candidates are treated equally, regardless of their partisan affiliation.

Maryland: on March 5, the Senate passed SB 256, which requires presidential candidates in the general election to reveal the last five years of their income tax returns. If a party’s presidential candidate does not comply, that party is barred from choosing any presidential elector candidates. The bill does not apply to independent or write-in candidates, nor presidential primary candidates. The House committee heard the bill on March 20, but has not yet voted on the bill.

Minnesota: on February 27, the House Government Operations Committee passed HB 1393. It moves the primary from the second Tuesday in August to the third Tuesday in June. If it becomes law, the deadline for a new party would automatically move from May to March, would be unconstitutional under the Eighth Circuit precedent McLain v Meier, 637 F.2d 1159.

Tennessee: on March 20, the Senate State and Local Government Committee sent the ballot access bill, SB 770, to interim summer study. It would have lowered the petition for a new party from 2.5% of the last gubernatorial vote to exactly 5,000 signatures.

Washington: on March 5, the legislature passed SB 6058, which sets up a write-in declaration of candidacy procedure. No filing fee would be required. Unfortunately the bill does not provide that write-in votes for such candidates must be counted.

On March 27, the North Carolina Board of Elections voted that the Green Party is ballot-qualified. A law passed in 2017 said that any party whose presidential nominee was on the ballot in at least 35 states is a qualified. The Green Party complies with this requirement, but the state wouldn’t implement the new law until it had a functioning State Board of Elections. There were no Board members until March 16, when the Governor acted.

Filing for the California primary has closed. The charts below show the number of candidates who have filed to appear on the California primary ballot, for legislature and U.S. House, 1992-2018. The charts do not include write-in candidates in the primary.

The charts show that the number of candidates for those offices has declined sharply since 1992. This is despite the fact that independent candidates did not file to be on the primary ballot until 2012, but starting in 2012, they do file to be on the primary ballot.

It is well-known that the top-two system has sharply reduced the number of minor party candidates who file for the primary. But what had not been noticed is the sharp decline in the number of Republicans who have filed to be on the primary ballot in recent years. The number of Republicans who have filed in 2018 for the legislature is only 95, yet there are 100 legislative seats open. This is probably the lowest number of Republicans who filed for the primary in California ever since the primary began in 1910.

YEAR	Dem.	Rep.	Lib’t.	PFP	Green	AIP	Nat Law	Reform	indp	TOTAL
1992	165	217	59	32	6	3	– –	– –	– –	482
1994	177	165	46	22	5	1	– –	– –	– –	416
1996	160	175	31	7	2	1	32	6	– –	414
1998	149	157	52	8	2	2	11	5	– –	386
2000	153	160	67	– –	4	0	24	4	– –	412
2002	142	131	47	– –	4	0	0	1	– –	325
2004	134	137	47	3	5	0	0	– –	– –	326
2006	168	132	30	8	8	0	0	– –	– –	346
2008	143	125	20	4	1	0	– –	– –	– –	293
2010	148	151	24	6	5	2	– –	– –	– –	336
2012	168	128	3	1	1	0	– –	– –	10	311
2014	155	115	1	1	2	0	– –	– –	7	281
2016	156	120	4	0	0	1	– –	– –	7	288
2018	184	95	10	0	3	0	– –	– –	7	299

CALIFORNIA U.S. HOUSE CANDIDATES ON PRIMARY BALLOTS

YEAR	Dem.	Rep.	Lib’t.	PFP	Green	AIP	Nat Law	Reform	indp	TOTAL
1992	143	150	37	30	8	2	– –	– –	– –	370
1994	96	104	30	12	3	5	– –	– –	– –	250
1996	87	91	42	10	2	5	37	10	– –	284
1998	65	90	33	4	6	3	27	6	– –	234
2000	75	81	45	– –	4	4	51	7	– –	267
2002	71	82	46	– –	5	3	1	2	– –	210
2004	68	67	24	5	12	2	0	– –	– –	178
2006	80	73	24	9	7	2	0	– –	– –	195
2008	79	65	20	5	5	2	– –	– –	– –	176
2010	70	101	21	7	5	8	– –	– –	– –	212
2012	104	95	3	1	6	0	– –	– –	25	234
2014	95	84	4	3	3	0	– –	– –	16	205
2016	96	84	2	1	1	0	– –	– –	16	200
2018	115	89	5	1	9	2	– –	– –	23	244

STATE	REQUIREMENTS		SIGNATURES OR REGISTRATIONS OBTAINED				DEADLINES
	FULL PARTY	CAND	LIB’T	GREEN	CONSTI	WK FAM	Party Due	Indp. Due
Ala.	35,413	35,413	1,000	0	0	0	June 5	June 5
Alaska	(reg) 8,925	#3,213	already on	(rg) *1,693	*422	0	June 1	Aug. 21
Ariz.	23,041	* #36,697	already on	already on	0	0	March 1	May 30
Ark.	10,000	10,000	already on	0	0	0	January 2	*May 1
Calif.	(es) (reg) 65,000	65 + fee	already on	already on	*321	0	January 2	March 9
Colo.	(reg) 1,000	#1,000	already on	already on	already on	0	Jan. 10	July 12
Conn.	no procedure	#7,500	already on	already on	0	already on	– – –	Aug. 8
Del.	* (reg) 688	*6,876	already on	already on	*288	*371	Aug. 21	July 15
D.C.	no procedure	#3,000	already on	already on	can’t start	can’t start	– – –	Aug. 8
Florida	0	pay fee	already on	already on	already on	0	Sep. 1	July 15
Georgia	54,306	#51,912	already on	0	0	0	July 10	July 10
Hawaii	750	25	already on	already on	*already on	0	Feb. 22	June 5
Idaho	13,809	1,000	already on	*1,000	already on	0	Aug. 30	March 9
Illinois	no procedure	#25,000	*200	*0	*0	*0	– – –	June 25
Indiana	no procedure	#26,700	already on	*1,500	0	0	– – –	June 30
Iowa	no procedure	#1,500	already on	0	0	0	– – –	Aug. 17
Kansas	16,776	5,000	already on	0	0	0	June 1	Aug. 6
Ky.	no procedure	#2,400	already on	0	0	0	– – –	Aug. 14
La.	(reg) 1,000	#pay fee	already on	already on	*170	0	May 17	Aug. 17
Maine	(reg) 5,000	#4,000	already on	already on	0	0	Jan. 2	June 1
Md.	10,000	10,000	already on	already on	0	0	Aug. 6	Aug. 6
Mass.	(est) (reg) 45,500	#10,000	already on	*500	169	39	Feb. 6	July 31
Mich.	32,261	30,000	already on	already on	already on	0	July 19	July 19
Minn.	147,247	#2,000	0	0	0	0	May 1	June 5
Miss.	be organized	1,000	already on	already on	already on	0	March 1	March 1
Mo.	10,000	10,000	already on	already on	already on	0	July 30	July 30
Mont.	5,000	#10,685	already on	*already on	0	0	March 15	May 29
Nebr.	4,880	(es) 121,000	already on	300	0	0	Aug. 1	Sept. 3
Nev.	10,785	250	already on	(rg) *3,728	already on	0	June 3	June 3
N. Hamp.	21,746	#3,000	already on	0	0	0	Aug. 7	Aug. 7
N.J.	no procedure	#800	0	0	0	0	– – –	June 5
N. M.	2,565	15,390	already on	already on	*400	0	June 28	June 28
N.Y.	no procedure	#15,000	can’t start	already on	can’t start	already on	– – –	*July 31
No. Car.	*11,778	*70,666	already on	already on	*7,200	0	May 16	April 23
No. Dak.	7,000	1,000	already on	0	0	0	April 15	Sep. 3
Ohio	54,965	5,000	*85,000	already on	0	0	July 3	May 7
Okla.	24,745	pay fee	already on	0	0	0	March 1	April 13
Oregon	22,046	18,279	already on	already on	already on	already on	Aug. 28	Aug. 28
Penn.	no procedure	5,000	*500	*600	*0	*0	– – –	Aug. 1
R.I.	16,203	#1,000	0	0	0	0	Aug. 1	July 10
So. Car.	10,000	10,000	already on	already on	already on	already on	May 6	July 16
So. Dak.	*2,775	2,775	already on	0	already on	0	*July 1	Apr 24
Tenn.	33,844	25	*13,000	0	0	0	Aug. 16	April 5
Texas	47,086	47,086	already on	*0	*0	*0	May 19	June 28
Utah	2,000	#1,000	already on	already on	already on	0	Nov 30, 15	March 15
Vermont	be organized	#500	already on	0	0	*0	Jan. 1	Aug. 7
Virginia	no procedure	#10,000	*1,500	0	0	0	– – –	June 12
Wash.	no procedure	#pay fee	can’t start	can’t start	can’t start	can’t start	– – –	May 18
West Va.	no procedure	#6,516	already on	already on	0	0	– – –	Aug. 1
Wisc.	10,000	#2,000	already on	already on	already on	0	May 1	June 1
Wyo.	5,036	5,036	already on	0	already on	0	June 1	Aug. 27
TOTAL STATES ON			40*	24*	14*	4*	“	“

#partisan label permitted.
*change since Jan. 1, 2018 issue.

Filing has closed for candidates running in primaries in the District of Columbia. No Republican will appear on the primary ballot for any partisan districtwide office. One candidate had filed for City Council-at-Large, but he withdrew.

If the Republican Party doesn’t nominate anyone by write-ins at the June 19 primary, it will lose its status as a qualified party. If it loses its status as a qualified party in November 2018, it cannot have its own primary, nor its presidential primary, in 2020. There is no means in D.C. for an unqualified party to gain or regain qualified status in advance of any particular election. All the party could do would be to use the independent procedure for a candidate in November 2020, and if that candidate receives at least 7,500 votes, then it would be a qualified party again.

This would also mean that the Republican presidential nominee in 2020 would need his or her own independent petition, in order to be on the November 2020 ballot in D.C.

The Montana Green Party has two candidates in its primary for U.S. Senate, so the state will be required to print up primary ballots for the party. The primary is June 5. This is the first time Montana has held a primary for a party, other than the Republican and Democratic Parties, since 2000, when the Reform Party had a primary. When parties don’t have contested nominations, the state cancels its primary.

The Centrist Project, which has been encouraging independent candidates to run for office this year, has changed its name to Unite America.

Illinois held its primaries on March 20. As expected, avowed Neo-Nazi Arthur Jones won the Republican nomination for U.S. House, 3^rd district, in Cook County. No one ran against him. Someone might have filed to run against him, except that Jones filed his petition on the last day, and party leaders weren’t aware that he had petitioned. He received 16,458 votes in the primary. By contrast, last time a Republican ran for this seat, the Republican primary vote for this office was 28,883 votes. Party leaders had asked voters to leave their ballot blank.

On March 13, Pennsylvania held a special election to fill the vacancy in the U.S. House, 13^th district. The results: Democrat Conor Lamb 113,813; Republican Richard Saccone 113,186; Libertarian Drew Miller 1,379.

When this seat had last been up, in November 2016, the only name on the ballot had been a Republican.

On March 6, Pittsburgh, Pennsylvania, held a partisan special election to fill the vacant city council seat, 8^th district. Independent candidate Erika Strassburger defeated her major party opponents.

On March 20, South Glens Falls, New York, held a partisan special election to fill a vacant seat on the Village Board. The Green Party nominee, Christine Elms, won. She was the only name on the ballot but she had two write-in opponents, one of whom was a former Mayor.

Ohio Governor John Kasich, a Republican, said on March 22 that he is "open" to the idea of running for president in 2020 as an independent candidate.