WINS AGAINST COLORADO AND NEW YORK BANS ON OUT-OF-STATE CIRCULATORS

Colorado: On May 1, U.S. District Court Judge Phillip Brimmer, a Bush Jr. appointee, enjoined the Colorado ban on out-of-state circulators for candidates running in a primary. Goodall v Williams, 1:18cv-980. And on May 2, the Tenth Circuit refused to disturb that order. The three judges on the Tenth Circuit for this case were Jerome Holmes and Terrence O’Brien (Bush Jr. appointees), and Allison Eid (a Trump appointee). 18-1183.

If the courts had not enjoined the law, Congressman Doug Lamborn would not have been on the Republican primary ballot. In April the State Supreme Court had determined that two of his circulators were not Colorado residents, even though they had ties to Colorado.

The decision says, "The plaintiffs have made a strong showing that they are likely to succeed on the merits of their First Amendment claim…More recent cases have recognized a judicial ‘consensus’ that such restrictions impose severe burdens on speech."

The Colorado Secretary of State had tried very hard to defend the state’s ban. He had hired an expert witness to testify in favor of the ban.

New York: on May 18, U.S. District Magistrate Steven M. Gold, a Clinton appointee, struck down the ban. Free Libertarian Party v Spano, e.d., 1:16cv-3054. It is somewhat likely the state will appeal. In the meantime, the state is trying to persuade the Magistrate to rule that his order doesn’t go into effect until November 2018, so it wouldn’t be of any use this year to various independent candidates, and the nominees of unqualified parties. The petitioning period doesn’t start until July for federal office, and August for state and local office.

More Lawsuits Filed on this Topic:

On May 9, a lawsuit was filed against Montana’s ban on out-of-state petitioners for initiatives (out-of-state petitioners are already permitted for new party petitions, and candidate petitions). Pierce v Stapleton, 6:18cv-63.

In early June, a similar lawsuit will probably be filed against North Dakota’s ban. At that point, the only state with the ban, and which is not in court, will be South Dakota.

On May 3, Oklahoma Governor Mary Fallin signed SB 350. It makes it far easier for a party to remain on the ballot. The old law required it to poll 2.5% for Presdent, but the new law only requires that it poll 2.5% for some statewide office every four years. The only third parties that have polled as much as 2.5% for President nationwide in the last 90 years have been the American Party in 1968, the Reform Party in 1996, the Green Party in 2000, and the Libertarian Party in 2016.

Oklahoma is now a state that makes it very difficult for a new party to get on the ballot, but easy to stay on. The others are California, Georgia, Idaho, Kansas, Michigan, Nevada, and South Carolina.

On May 24, Connecticut Governor Dannel Malloy signed HB 5421, the National Popular Vote bill. Connecticut is the first state to have passed the plan since the 2016 elecction.

On May 24, the national Democratic Party filed a federal lawsuit against the Florida law that says the party that elected the Governor in the last election will have its candidates listed first on the ballot. Jacobson v Detzner, n.d., 1:18cv-95. The case is assigned to Judge Mark E. Walker, an Obama appointee.

Florida has elected Republicans in every gubernatorial election starting with 1998.

These lawsuits have won in other states in the past, but they are very expensive, because it is always necessary for the plaintiffs to hire experts in statistics. Approximately two-thirds of the states do not give all candidates an equal opportunity to be listed first on the ballot.

The Democratic Party hired the law firm Perkins Coie, one of the largest law firms in the nation.

Other states in which such lawsuits have won are California, Illinois, New Hampshire, New Mexico, North Dakota, and Oklahoma.

On May 29, a federal lawsuit was filed to challenge the Nebraska petition requirement for non-presidential independent candidates. In 2016 the legislature had raised the number of signatures from 4,000 to 10% of the number of registered votes (as of the date the petition is turned in), which is about 130,000 signatures. The plaintiff is an independent candidate for Treasurer, Kent Bernbeck. Bernbeck v Gale.

During May, several prominent Californians who formerly supported the top-two system said they are starting to change their minds.

State Senator Robert Hertzberg recently said, "It’s challenging for me. I like it because people who before were frozen out of the primary system are allowed to participate, although they don’t participate in as high of numbers. But what’s concerning me is how it’s practiced, because now it’s being manipulated all over the place, where Democrats will get involved in Republican races and vice versa in order to manipulate the outcome and it concerns me a lttle bit. I’ve given it a lot of thought but I think we need to look at doing our elections another way." The interview was published May 22 at the Independent Voters Network web page. Hertzberg is a former Speaker of the Assembly, and now he is one of five State Senators on the Elections Committee.

George Skelton, who has fiercely supported top-two ever since 2004, wrote on May 17, "Maybe we should consider reforming the system." Skelton is the dean of the reporters who cover state government for major newspapers; he writes for the Los Angeles Times.

Skelton also quoted Marty Wilson, executive vice-president of the California Chamber of Commerce, and a spokesperson for the Chamber, as proposing that top-two be modified so that it no longer is used for statewide office. The Chamber of Commerce has been such an avid supporter of top-two, it has intervened in court in every lawsuit that challenged any aspect of top-two, along with the Business Roundtable and Californians for an Open Primary.

The reason for this re-evaluation is the behavior of 2018 candidates for Governor and U.S. House in California, along with the behavior of the major parties.

They are actively and massively intervening in the campaigns of the opposite major party, all trying to influence the identity of who places first and second and thus qualifies for the November ballot.

Author Andrew Gumbel explained it in the Los Angeles Times on May18: "California’s system is not working as intended and risks throwing the midterm election into acrimony and confusion. This is system is called a ‘jungle primary’ for a reason. It is brutal and unpredictable. In three high-profile House races, there are so many candidates from the two major parties eating into one another’s support that the election results may end up owing more to chance than any discernible will of the people."

"Polls show that Democrats have an excellent chance of capturing the Southern Californian seats being vacated by Ed Royce and Darrell Issa and have a good shot at unseating Dana Rohrabacher. These are all bona fide swing districts that surely deserve an up-and-down contest between a Republican and a Democrat in November." He then goes on to explain that even though the total Democratic vote in any or all of those districts may comprise a majority of the primary vote, Democrats may still end up with no one on the November ballot.

One solution would be to return to the blanket primary that California used in 1998 and 2000. The U.S. Supreme Court invalidated it in June 2000, but it could be altered to make it constitutional. A blanket primary puts all partisan candidates on the same primary ballot, and all voters use that ballot. Then, the top vote-getter from each party appears on the November ballot. The U.S. Supreme Court had said that parties cannot be forced to let non-members help choose their nominees. But if the blanket primary were made voluntary, with the alternative that parties that don’t like a blanket primary could nominate by convention, it should pass muster. Alaska currently uses a blanket primary.

A poll conducted by the Los Angeles Times and the Dornsife College at USC was released on May 26. It shows that, of the voters who expressed an opinion, 50% favor the existing top-two system; 40% favor a semi-closed primary; and 10% favor a closed primary.

The poll was conducted on-line between April 18 and May 18, before much of the publicity about how the existing system is being manipulated, as described in the previous story. It is unfortunate that the poll did not ask voters about a blanket primary. Nor did it ask about a classic open primary (in which there is no registration by party, and any voter is free to choose any party’s primary ballot). Nor did it ask about the idea of having no primary, which is the policy in use in Louisiana.

MAINE REPUBLICANS SUE TO STOP RANKED CHOICE VOTING FOR THEIR OWN PRIMARY

On May 4, the Maine Republican Party amended its bylaws to say that the party prefers to nominate its candidates without ranked choice voting. The same day, it filed a federal lawsuit, arguing that the U.S. Constituiton’s freedom of association clause protects a party’s decision as to how to nominate candidates for public office. Maine Republican Party v Dunlap, 1:18cv-179.

The voters of Maine have passed an initiative requiring that all parties use ranked choice voting in their primaries, and unless the Republican Party prevails in this lawsuit, the June 12 primary will use ranked choice voting. A hearing was held on May 23, and Judge Jon D. Levy, an Obama appointee, promised a decision no later than June 1.

Click here to see a copy of the primary ballots for both major parties. If the lawsuit wins, only first choice votes will count in the Republican primary, but the Democrats would use ranked choice voting.

On April 20, U.S. District Court Judge Edward J. Davila, an Obama appointee, issued an opinion in Koller v Brown, n.d., 5:16cv-7069. This is the case in which a Democratic presidential elector had sued to overturn the California law that forces presidential electors to vote for the candidate who got the most popular votes in the state.

Judge Davila said that the elector, Vinz Koller, is not likely to be a presidential elector in 2020, and therefore the case is moot. This was legal error, yet Koller did not appeal. The U.S. Supreme Court said in 1969 in Moore v Ogilvie that election law cases are not moot, just because the election is over, because the issue is likely to arise again in a future election. Judge Davila knew about Moore, but he thought the plaintiffs in that case (who were candidates for presidential elector in Illinois in 1968) were likely to be candidates in a future presidential election. But the U.S. Supreme Court noted in a 1974 case, Richardson v Ramirez, 418 U.S. 24, on page 35, that the plaintiffs in Moore were not expecting to run in a future election. Koller’s attorney did not inform Judge Davila of the Richardson case.

Cases filed in 2016 by "disobedient" presidential electors are pending in Colorado and Minnesota.

Even though North Carolina made big improvements in ballot access last year, the state’s laws for independent candidates are still severe and likely unconstitutional. A lawsuit filed last year that challenges the independent petition requirements is finally starting to move ahead. On May 14, U.S. District Court Judge William Osteen gave permission for the plaintiffs to file an amended complaint, so the case can proceed. Leifert v State Board of Elections, m.d., 1:17cv-147.

On May 11, Tim Canova won his lawsuit against Broward County, Florida election officials. The court ruled that the county had broken federal law by destroying the ballots in the Florida primary of August 2016, for the Florida Democratic race for U.S. House, 23^rd district.

Canova had run in that primary against Democrat Debbie Wasserman Schultz. The results of the primary were: Wasserman Schultz 28,809; Canova 21,907. However, Canova had strong and verified information that the vote count was inaccurate, so he asked to examine the ballots. After he did so, officials destroyed the ballots, even though federal law says ballots shall not be destroyed until 22 months after any federal election.

The case is Canova v Snipes, Broward Circuit Court CACE 17-010904. Ironically, if the decision had come out earlier, Canova might have continued running in the 2018 Democratic primary, set for August 28. On April 2 he had withdrawn from that primary and declared as an independent candidate instead.

On April 2, the Montana Democratic Party filed a lawsuit against the Secretary of State, charging that the Secretary of State erroneously determined that the Green Party’s 2018 petition for ballot status had enough valid signatures. Larson v State, First District, Lewis & Clark County, CDV 2018-295.

The petition needed 5,000 signatures, and also approximately 130 signatures in each of 34 of the state’s 100 State House districts. Democrats say the petition lacks enough signatures in four districts. There is still no decision. The case is moving slowly. A trial was held on April 24, and then more evidence was taken on May 17 and again on May 24. The decision will be out any day now.

Arizona: on May 16, Governor Doug Ducey signed HB 2538. It says that if a U.S. Senate vacancy occurs after March of an even-numbered year, the gubernatorial appointee may serve for two-and-one-half years, instead of having to run in November of the year in which he or she was appointed.

California: SB 1394, which would outlaw paying petitioners on a per-signature basis, has passed all committee in the Senate, and will receive a vote in the Senate soon.

Hawaii: the legislature adjourned without passing the bills to delete the requirement that petition signers must include their Social Security number. The Senate had passed SB 462, but the House never acted.

Louisiana: on May 9, the legislature passed HB 54, which eases the recall petition from 33.3% of the registered voters, to 20% of the registered voters (for statewide office).

Nebraska: on April 18, the Nebraska Senate Government Committee killed SB 969, which would have lowered the non-presidential independent petition from 10% of the registered voters, to 4,000 signatures.

The petitioning chart lists petition deadlines. There is no room on the chart to show both New York deadlines, which are July 31 for federal office and August 21 for state office.

For Tennessee, the chart shows "already on" for Libertarians and Greens. Both parties have a nominee for Governor, but in each case the nominee is on as an independent.

ERRATA: The May 1 BAN had a chart showing the last time a candidate with the label "independent" was on in each state. The New York entry should have been a special election in February 1994, 46^th district. The candidate was Michelle Heitzner, who received 5.39%.

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) *1,678	*431	0	June 1	Aug. 21
Ariz.	23,041	#36,697	already on	already on	*too late	*too lte	March 1	May 30
Ark.	10,000	10,000	already on	*too late	*too late	*too late	January 2	May 1
Calif.	*(reg) 62,569	65 + fee	already on	already on	*too late	*too late	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	*286	*370	Aug. 21	July 15
D.C.	no procedure	#3,000	already on	already on	*0	*0	– – –	Aug. 8
Florida	0	pay fee	already on	already on	already on	*too late	*May 4	*May 4
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	*22,000	0	0	0	– – –	June 25
Indiana	no procedure	#26,700	already on	*5,000	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	*too late	*too late	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	*3,000	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	*2,500	*2,500	0	0	May 1	June 5
Miss.	be organized	1,000	already on	already on	already on	*too late	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	*in court	*too late	*too late	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	*finished	*finished	0	0	– – –	June 5
N. M.	2,565	15,390	already on	already on	*600	0	June 28	June 28
N.Y.	no procedure	#15,000	can’t start	already on	can’t start	already on	– – –	*August 21
No. Car.	11,778	70,666	already on	already on	*already on	*too late	May 16	April 23
No. Dak.	7,000	1,000	already on	0	0	0	April 15	Sep. 3
Ohio	54,965	5,000	*93,900	already on	0	0	July 3	May 7
Okla.	24,745	pay fee	already on	*too late	*too late	*too late	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	*2,500	*3,500	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	*already on	*already on	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	*too late	Nov 30, 15	March 15
Vermont	be organized	#500	already on	0	0	*0	Jan. 1	Aug. 7
Virginia	no procedure	#10,000	*10,000	0	0	0	– – –	June 12
Wash.	no procedure	#pay fee	*too late	*too late	*too late	*too late	– – –	May 18
West Va.	no procedure	*#4,537	already on	already on	0	0	– – –	Aug. 1
Wisc.	10,000	#2,000	already on	already on	already on	*too late	May 1	June 1
Wyo.	5,036	5,036	already on	0	already on	0	June 1	Aug. 27
TOTAL STATES ON			41*	24	15*	4*	“	“

#partisan label permitted.
* change since April 1 2018 issue.

On May 15, Nebraska held its non-partisan legislative primary. Libertarian Senator Laura Ebke faced two opponents. She placed second, with 2,603 votes. Placing first was Tom Brandt, with 3,495 votes; third place was taken by Al Riskowski, with 1,772 votes.

Because Ebke placed second, she will run in November. Riskowski had been endorsed by Governor Pete Ricketts, a Republican. In the general election the Governor will probably support Tom Brandt, who is a Republican.

Don Blankenship, who lost the May 8 Republican primary in West Virginia for U.S. Senate, has changed his registration to the Constitution Party, which is not ballot-qualified.. He will try to get on the November ballot as the Constitution Party nominee. He needs 4,537 valid signatures by August 1. Assuming he completes the petition, it is still not clear that he can be placed on the November ballot because of his having run as a Republican in the primary. He plans to start petitioning on June 1.

The New York Reform Party will have a contested primary for Attorney General. The party rules permit independent candidates to vote in its primaries, but until 2018, the party has not actually had any statewide primaries. Therefore, its 2018 primary it will be the first New York statewide primary in history at which independents can request a party primary ballot. The New York Independence Party also lets independents vote in its primaries, but it never has actual primaries for statewide office.

North Dakota elects its Secretary of State to a four-year term this year. Incumbent Al Jaeger will run for re-election this year as an independent candidate. In previous years he always ran as a Republican. He had decided not to run in this year’s June Republican primary, after the Republican state endorsements meeting preferred another Republican. But then that other Republican withdrew from the race, leaving no name on the Republican primary for Secretary of State. So Jaeger changed his mind about running for re-election. He needs 1,000 signatures by September 3.

If Jaeger wins in November, he will be the nation’s first Secretary of State ever elected as an independent candidate. The last third party candidate to be elected Secretary of State was Theodore Dammann, the 1936 Progressive Party nominee in Wisconsin.

California holds its primary on June 5. For partisan office, candidates who are not members of qualified parties can not have their party label printed on the ballot, but members of qualified parties may, if they are running for partisan office. This policy is under attack in the Ninth Circuit, and a decision in Soltysik v Padilla could come at any time.

In the 2018 primary, at least two unqualified parties have candidates on the ballot. The Constitution Party has Don Grundmann, running for U.S. Senate. The Socialist Equality Party has David Moore, running for U.S. Senate; and Kevin Mitchell, for U.S. House, 51^st district.

The Socialist Workers Party had a candidate for U.S. Seante on the 2016 primary ballot, but doesn’t have any candidates on the 2018 primary ballot.