U.S. DISTRICT COURT ENJOINS MICHIGAN PETITION REQUIREMENT FOR STATEWIDE INDEPENDENT CANDIDATES

On August 27, U.S. District Court Judge Victoria Roberts, a Clinton appointee, enjoined the Michigan independent statewide petition requirement. It requires 30,000 signatures, due July 19. Only six months are permitted to obtain the signatures. Graveline v Johnson, e.d., 2:18cv-12354.

The plaintiff is Chris Graveline, a former assistant U.S. attorney. He didn’t start his petitioning until June. He had 231 volunteer petitioners, and had paid circulators, but he only got 14,157 signatures. The order says that the 2018 petition for statewide independents will be 5,000 signatures. It is likely that he has at least that many valid signatures.

The key to the win was that the law has existed since 1988, but no one has managed to comply with it for statewide office, except Ross Perot in 1992 and Ralph Nader in 2004. Also, the petition deadline is six weeks earlier than the deadline for qualified parties to choose their nominees for Attorney General (in Michigan, even the major parties nominate for this office by convention, not primary, and the convention can be as late as the first week in September). The U.S. Supreme Court Anderson v Celebrezze said that states must generally allow independents to get on the ballot after the major parties have made their nomination.

Generally, when a court enjoins a ballot access law and puts a candidate or a party on the ballot, that ballot access restriction is soon afterwards declared unconstitutional. Assuming the Michigan law is held unconstitutional, this will be the first time that a federal court has ever struck down a petition requirement that was lower than 1% of the last vote cast.

The precedent set by this decision will be useful in the other states in which candidates or parties are hoping to overturn the number of signatures. Such cases are pending in Alabama, Arizona, California, Georgia, Illinois, and North Carolina. Similar cases will probably be filed later this year in Texas and Florida.

During August, two ballot access lawsuits in North Carolina resulted in wins for the candidates that brought them. In each case, the basis for the win was that the legislature had changed the ballot access law in a restrictive direction, after the candidate had already qualified.

Sore Loser Retroactive Law

The Constitution Party had nominated three candidates who had run in Democratic or Republican primaries earlier this year, and who had lost their primaries. When the Constitution Party nominated them, by convention in June, there was no law that said the party couldn’t do that. But shortly afterwards, the legislature passed a law that said such nominations are not valid.

A federal court put the three candidates on the ballot, on due process grounds. Poindexter v Strach, e.d., 5:18cv-366. Although the new law is presumably valid for the future, it is not permissible to apply the new law to the 2018 candidates. They are James Poindexter, who had lost a Republican primary for State House, district 90; Jerry Jones, who had lost a Democratic primary for Greene County Commission; and Gregory Holt, who had lost a Republican primary for Craven County Board of Commissioners.

They will now be on the November ballot as candidates for the same offices, but this time as Constitution Party nominees. The state is not appealing the injunctive relief.

Party Labels Retroactive Law

This year only, judicial candidates in North Carolina have party labels on the November ballot, but they are not party nominees. The legislature cancelled the judicial primaries for this year only, and said anyone who wants to run for judge should just file for November, and his or her party label would match how the candidate is registered.

There is one State Supreme Court race this year, and three candidates filed, two Republicans and one Democrat. This alarmed Republican legislators, because they feared Republican-leaning voters would split their votes among the two Republicans, making it easy for the Democrat to win. So, after the list of candidates was set, they passed a law saying a party label should not be printed for candidates who had changed their party registration during the 90 days before filing. On August 13, a state trial court said the new law is invalid, not only because it changes the rules after candidates had filed, but also because it violates equal protection to give some candidates a party label but deny it to others. On August 27 the State Court of Appeals refused to enjoin this ruling, and on August 28, legislative leaders said they will not appeal to the State Supreme Court. Anglin v State Board of Elections, 18-cvs-9748, Wake County. In the Appeals court, it was P18-586.

A second judicial candidate, Rebecca Edwards, who is running for a trial court position, filed an identical case and won as well. She is a Democrat.

As noted in the last B.A.N., on July 9, a Montana state court ruled that the Green Party did not have enough signatures in a few legislative districts, and removed it from the ballot. Everyone agreed that the party had at least 5,000 valid signatures, but the law also requires the party to have a certain number of signatures from each of 34 state house districts.

On August 13, the Green Party filed a federal lawsuit, alleging that the petition deadline for new parties, March 5, is too early. Also, it argues that the distribution requirement is unconstitutional, because it violates "one person, one vote." Although the districts have equal populations, the law requires as few as 55 signatures in some districts, but as many as 150 signatures in other districts.

All other states with distribution requirements for statewide petitions require an equal number of signatures in each district. The U.S. Supreme Court ruled in 1969 in Moore v Ogilvie that unequal distribution requirements are unconstitutional because they give some voters in some areas more power than voters in other areas. In Montana, a voter who lives in a district that requires only 55 signatures has more power than a voter who lives in a district which requires 150 signatures.

On August 21, the Montana Supreme Court said the lower state court had been correct to remove the Green Party from the ballot, but did not consider any of the points in the federal lawsuit.

On August 23, the California legislature passed AB 1947, which bans paying circulators on a per-signature basis, for initiatives, referenda, and recalls. Governor Jerry Brown has vetoed the same bill in the past, and may veto it again.

On August 29, the Eleventh Circuit issued in opinion in Hall v Merrill, 16-16766. The issue is whether it is constitutional for Alabama to require a petition of 3% of the last gubernatorial vote, for an independent candidate in a special U.S. House election. The lower court had said it is unconstitutional, because there isn’t enough time in special elections for a diligent candidate to collect 5,000 or so valid signatures.

The Eleventh Circuit said the case is moot, and vacated the lower court decision. The vote was 2-1. The majority had to admit that constitutional ballot access cases are generally not moot just because the election is over. The majority had to admit that, because the U.S. Supreme Court said so in 1969 in Moore v Ogilvie. But the majority said special elections are different, because they are rare, and therefore such cases are moot. But it pointed to no precedent that says that.

The majority admitted that even in special elections, the case is not moot if the plaintiff plans to run again, but it said it is unlikely that the plaintiff plans to run in a future special election. This is pure speculation.

The majority overlooked the point that in 1973, the U.S. Supreme Court mentioned Moore v Ogilvie in another decision, Richardson v Ramirez. On page 35 of Richardson, the U.S. Supreme Court said that the plaintiffs in Moore v Ogilvie "were not apt to revive their candidacy in a future election." Hall will ask for a rehearing, and will mention this point.

On August 9, Massachusetts Governor Charles Baker signed HB 4834, to create automatic voter registration.

On August 27, a 3-judge U.S. District Court ruled that North Carolina U.S. House districts are invalid because they are a partisan gerrymander. Common Cause v Rucho, m.d., 1:16cv-1026. The opinion says partisan gerrymandering violates the First Amendment and the Fourteenth Amendment. Concerning the First Amendment, the court wrote, "Multiple Plaintiffs testified that ‘in the most recent election, a lot of people did not come out to vote because they felt their vote didn’t count.’" The court here equates voting with First Amendment activity.

The decision also says, "Individual Plaintiffs also testified to the adverse impact of the districting plan on their ability to interact with and influence their representatives", because the representatives were so certain to be re-elected (due to the gerrymander) that they didn’t need to listen to constituents.

The decision also says the gerrymander "hurt the Democratic Party’s ability to raise funds and to recruit strong candidates", because the gerrymander made their races hopeless.

It is not yet determined if the invalid districts will be used in this year’s election. All three judges agreed that the districts are invalid, although the majority said partisan gerrymandering is always unconstitutional, whereas the third judge said it is only unconstitutional when it is extreme.

California: Mission Viejo, a city in Orange County, will begin using Cumulative Voting in 2020 for its city council elections. This is the first jurisdiction in California to use that system.

North Dakota: the voters of Fargo will vote in November on whether to use Approval Voting for future elections for city office.

On August 29, the West Virginia Supreme Court ruled unanimously that Don Blankenship, the Constitution Party’s nominee for U.S. Senate, should not be on the ballot. He had run and lost the Republican primary earlier this year. State of West Virginia ex rel Blankenship v Warner, 18-0712. The law banning such "sore losers" was not passed 2018, and was not in effect when the party nominated Blankenship. The court said it will explain its reasoning later. Several members of the Court have been impeached by the legislature (although not yet removed), which may have had a bad effect on their ability to make an independent judgment.

On August 24, the Alaska Supreme Court issued an opinion in State v Alaska Democratic Party, S-16875. The issue was the law that won’t let parties nominate non-members. The decision says that parties must be allowed to nominate independent candidates. The decision was no surprise, because back on April 4, the Court had issued a brief order, letting the Democratic Party allow independent candidates to run in its primary. But only on August 24 did the State Supreme Court explain its reasoning. It relied on the U.S. Supreme Court decision Tashjian v Republican Party of Connecticut.

The Alaska Supreme Court did not mention that a federal court in New Mexico, and a state court in Colorado, had made similar rulings some years ago. It appears neither side in the case realized the existence of those other precedents. The federal case is Woodruff v Herrera, U.S. District Court, New Mexico, 1:09cv-449, decision of March 31, 2011. The state case is Colorado Democratic Party v Meyer, Denver District Court, 88cv-7646, decided May 5, 1988.

On August 29, the New Mexico Secretary of State, Maggie Toulouse Oliver, said she is adding a straight-ticket device to the 2018 ballot, even though there is no law authorizing it.

Connecticut: on August 21, a lower state court issued a 47-page opinion, settling the dispute over who the identity of the Independent Party’s state officers. The court ruled in favor of the Waterbury faction. The decision is very thorough and contains a detailed history of the party. Independent Party of Connecticut State Central Committee v Merrill, Hartford Superior Court, HHDcv-16-6071. The case was two years old.

North Dakota: on August 3, the State Supreme Court ordered that Roland Riemers, the Libertarian candidate for Secretary of State, may have a recount of the primary vote. The original returns said he only got 247 votes in the Libertarian primary, and state law says he needs 300, or he can’t advance to the general election. Riemers v Jaeger, 2018-192.

Pennsylvania: on August 7, the Third Circuit said the Pennsylvania Secretary of State was correct when he removed Rocky De La Fuente from the November 2016 ballot as a presidential candidate, even though he had enough valid signatures. The state removed him because he had run in the Democratic presidential primary.

The Third Circuit did not even mention De La Fuente’s point that sore loser laws do not pertain to presidential primaries for two reasons: (1) the true candidates are candidates for presidential elector, and they didn’t run in the primary; (2) no one loses a presidential nomination in the presidential primary of a single state. De La Fuente v Cortes, 17-3778. The decision is marked "not precedential"and will not be reported.

Georgia: on August 28, a U.S. District Court cleared away all procedural objections to the lawsuit Curling v Kemp, n.d., 1:17cv-2989. The judge set a hearing on September 17 to hear arguments on whether to enjoin Georgia’s vote-counting machines, which do not leave an audit trail.

Michigan: on August 1, U.S. District Court Judge Gershwin A. Drain ruled that the bill to abolish the straight-ticket device, passed in 2016, is unconstitutional because it has a racially discriminatory effect. The state is appealing. Michigan A. Philip Randolph Institute v Johnson, e.d., 2:16cv-11844.

New Mexico: on August 13, the State Supreme Court issued a one-sentence opinion, upholding the law that says that although major party members don’t need any petition to get on a primary ballot for county office, independent candidates, and the nominees of qualified minor parties, do need petitions. Miller v Padilla, S-1-SC-37171.

South Dakota: on August 16, a lower state court ordered the Secretary of State not to list any Constitution Party nominees on the ballot this year. Lederman v Krebs, cv18-147. The basis is that two separate factions of the party had each submitted a separate list of nominees. Instead of adjudicating which faction is legitimate, the judge merely kept all the party’s nominees off the ballot. One of the factions did not make an appearance in court. Now the party will cease to be qualified, because it has no chance to poll 2.5% of the vote for any statewide race this year. It can get back on in 2019 with a petition of 1% of the last gubernatorial vote.

Washington: on August 24, the State Supreme Court unanimously put an initiative relating to guns back on the ballot. The lower court had invalidated it because the print on the petition was too tiny. Ball v Wyman, 96191-3. The Supreme Court said the lower court had no authority to act as it had done.

Independent Politics, How American Disdain for Parties Leads to Political Inaction, by Samara Klar and Yanna Krupnikov, 2016. Cambridge U. Press, 200 pages.

The authors are political scientists. Klar is at the University of Arizona and is a registered Democrat. Krupnikov is at Stony Brook University and is a registered independent. In 2017, the book received the Best Book Award from the American Political Science Association’s Experimental Politics Section; it also won the Robert E. Lane Award for best book from the APSA’s Political Psychology Section.

In 1992, six political scientists published research on independent voters. That book was The Myth of the Independent Voter. It showed that a large majority of people who said they were independents actually strongly prefer either the Democcratic Party or the Republican Party. These people were termed "leaners." At the time, 40% of the public said they were independents, but the book established that true independents were closer to 5%.

Since 1992, new research has mostly confirmed the findings of Myth. In 2012, a paper, "Revisiting the Myth of the Independent Voter" concluded that little had changed since 1992.

Klar and Krupnikov decided to research why so many people say they are independent, when they are not. The authors spent four years doing psychology experiments to help solve the puzzle. Their book presents their findings. The key finding is that "people who misrepresent their partisanship do so because they believe that openly identifying as a partisan will make a negative impression on others." This is especially true for individuals who try to make a good impression on others. The research shows that a considerable share of the population does not care much about making a a good impression, although most people do care.

Because hidden partisans want to remain hidden, they abstain from engaging in discussions about politics, and the authors believe that society suffers as a result.

Chapters One and Two set forth the book’s findings. The experiments are explained in Chapters Three through Seven.

The key experiment in chapter Three asks individuals how they could make the best possible impression, when they reveal their stance on political parties. Those respondents said the best way to make a good impression is to label oneself an independent. Other respondents were asked how they could make the worst possible impression, and they revealed that the worst impression is made when one identifies publicly as a strong partisan of one party. This is especially true if, before being asked any questions, the respondents are given a newspaper story to read about current U.S. politics.

The experiments in chapter Four show that individuals do not want a new co-worker who is known to be a supporter of any particular party, even if that co-worker supports the same party as the respondent. These chapters also show that individuals do not want to live in neighborhoods in which some of their neighbors display signs showing support for a partisan candidate or a party. Individuals even find other individuals less attractive when they learn that the person whose picture they are looking at is a supporter of a party. In short, being identified with a party these days is "social suicide." This is especially true when respondents read a newspaper story about politics before participating.

Chapter Five describes an experiment in which bumper stickers and other relatively small stickers were handed out on campus. Researchers then followed the individuals who had accepted the stickers. Whereas the non-partisan stickers, referring to issues, were likely to be displayed, the stickers referring to a party tended not to be displayed.

Chapter Six sets for the findings that, because identifying with a particular party has become so socially undesirable, fewer and fewer individuals are willing to talk about politics with their friends and neighbors. The authors fear that this is a problem for society.

Chapter Seven has the most surprising results. This is the chapter that shows that "closet partisans" are just as eager as open partisans for their favored political party to persevere when policy is set. It shows that closet partisans are upset when their own favored party compromises. Chapter Seven also presents experiments that show closet partisans are just as ideological as open partisans.

Chapter Eight makes the case that partisanship has actually decreased in recent years, among the public. However, the book was published in 2016, and things may have changed since then.

The book would have been stronger if it had done research into the contrast between how voters self-identify to pollsters, and how they register to vote, in the states that ask voters to describe themselves on voter registration forms. Although polls report that between 40% and 44% of voters identify as independents, only 28.5% register as independents. It would have been valuable if the authors had asked self-identified independents who register into parties to explain the divergence.

The book would also have been better if it had studied public opinion about the very concept of political parties, and whether many or all elections should become non-partisan.

The authors, like virtually all social scientists, believe political parties are beneficial. They write, "Political parties are considered the backbone of the American democratic process, the sorting mechanism by which voters’ preferences are translated into policy outcomes…Partisan debate is widely considered to be an important component of any healthy democracy."

~	Demo.	Rep.	Lib’t.	Constitn	Green	Wk Fam	Indp. Pty	other
Alabama	8,730	9,072	– –	– –	– –	– –	– –	– –
Arizona	12,816	7,562	1,008	– –	796	– –	– –	– –
Kentucky	62,944	84,300	– –	– –	– –	– –	– –	– –
Minn.	38,164	16,270	954	– –	1,336	– –	2,252	1,622
N. Mex.	5,940	2,494	534	– –	306	– –	– –	148
Ohio	17,917	17,917	– –	– –	– –	– –	– –	– –
Oregon	12,152	3,648	360	159	537	669	882	291
Rhode I.	8,268	2,664	– –	– –	– –	– –	– –	466
Utah	41,394	46,478	5,460	2,096	1,808	– –	4,298	2,524
Virginia	43,041	11,544	– –	– –	– –	– –	– –	– –
TOTAL	251,366	201,949	8,316	2,255	4,783	669	7,432	5,051

Entries in "Other" column are: Minn., Grassroots $577 & Legalize Marijuana Now $1,045; New Mexico, Better for America; Oregon, Progressive; Rhode Island, Moderate; Utah, United Utah. Virginia data is unofficial. Last year, he Iowa legislature abolished the state income tax checkoff for political parties.

YEAR	Democrat	Republican	Green	Lib’t.	Reform/AE	Constitution	Other
2000	941,463	822,671	31,864	13,024	5,054	19,209	71,824
2001	680,608	611,065	12,184	8,173	755	2,295	46,232
2002	928,716	892,438	84,120	7,289	749	2,886	97,559
2003	1,181,312	1,126,585	20,665	7,859	46	51	9,975
2004	828,136	786,190	16,309	8,446	324	1,409	8,822
2005	750,461	714,238	18,100	5,546	34	2,442	25,887
2006	915,945	806,193	50,434	7,282	– –	5,847	45,355
2007	1,050,593	850,580	15,716	5,839	– –	3,503	15,627
2008	1,520,746	1,127,478	8,324	5,034	– –	5,938	5,219
2009	978,325	718,165	7,642	45,889	– –	4,520	4,970
2010	830,562	616,027	5,257	11,115	– –	3,617	5,630
2011	850,490	603,022	6,560	53,133	– –	4,367	11,766
2012	1,883,507	1,245,403	7,862	101,253	– –	2,458	8,733
2013	740,897	545,527	4,041	22,438	11,516	2,816	21,430
2014	369,153	324,042	1,836	7,418	817	3,041	3,175
2015	280,223	246,396	1,777	7,263	174	2,455	12,078
2016	275,908	231,102	3,517	6,636	561	2,428	6,229
2017	261,402	235,678	2,502	7,426	– –	2,333	8,781
2018	251.366	201,949	4,783	8,316	– –	2,255	13,152

On August 14, Gary Johnson, former Governor of New Mexico, accepted the Libertarian Party’s nomination for U.S. Senate. Although he did not run in the Libertarian primary in June, the winner of that primary withdrew, and the party was permitted to substitute a new nominee.

Ohio held a special U.S. House election on August 7 in the 12^th district. The results: Republican Troy Balderson 101,772; Democrat Danny O’Connor 100,208; Green Party nominee Joe Manchik 1,165.

On August 25, the Democratic National Committee voted that superdelegates can’t vote for President on the first ballot. Superdelegates are convention delegates who were never chosen in a presidential primary or caucus, but who are delegates by virtue of being a party officer or holding high elective office. The Bernie Sanders faction of the party had been working for this change.

On August 17, David McReynolds died. He had been the Socialist Party presidential nominee in 1980 and 2000. He was the first openly gay presidential candidate in a general election. He was 88 and lived in New York City.

Alaska held primaries on August 21. The Democratic primary for U.S. House was won by Alyse Galvin, who is a registered independent and expects to remain an independent. Because she is the Democratic nominee, though, she will be listed on the November ballot as "Democrat."

Maine law provides that when a county commissioner leaves in the middle of the term, the outgoing commissioner’s party may choose a replacement. On August 21, Androscoggin County permitted the Libertarian Party to name Ray Lafrance as a new commissioner, to replace Zachery Maher, who had resigned. Lafrance will be on the general election ballot, hoping to keep the seat.

On August 2, Libertarian Party member Joshua Beale was elected to the Montgomery County Commission in a partisan race. He defeated his only opponent, a Republican, 54.8%-45.2%. Beale’s label was "independent" because the Libertarian Party is not ballot-qualified in Tennessee.

No Republicans ran in the District of Columbia primary in June for any partisan districtwide office. But the D.C. Board of Elections then said that a qualified party could nominate after the primary is over, by party meeting. On August 8, the Republican Party nominated for U.S. House and At-Large member of the City Council. If the party had not done this, it would not have been able to poll 7,500 votes for any office in November, and would have lost its status as a qualified party. The Republican Party did not nominate for Attorney General or Mayor.

At the Washington top-two primary on August 7, Libertarian Brian Luke placed second for U.S. House, 2^nd district, even though the race also had a Republican and a Democrat running. This is the first time any minor party member has placed first or second in a top-two race, if both major parties also had someone running. Luke only received 51 more votes than the candidate who placed third, and there will be a recount in early September.