U.S. DISTRICT COURT PUTS LIBERTARIAN NOMINEES ON KENTUCKY 2019 BALLOT

On May 9, U.S. District Court Judge William Bertelsman, a Carter appointee, granted injunctive relief to the Kentucky Libertarian Party, and put its statewide nominees on the 2019 ballot. Sweeney v Crigler, e.d., 2:19cv-46.

The law that was enjoined was passed this year. It moves the deadline for filing a notice of candidacy, for parties that nominate by convention, from April to January. The Libertarian Party is the only party in Kentucky that is on the ballot and nominates by convention, so the bill was clearly aimed at the Libertarian Party. The bill was not signed until March 19, so it was retroactive. The party argued that the new law was unconstitutional anyway, and was doubly unconstitutional because it was retroactive.

Libertarians for Governor, Lieutenant Governor, Auditor, Agriculture Commissioner, and county office will now be on the November 2019 ballot. Kentucky, Louisiana, and Mississippi are the only states that elect Governors in 2019. Later the court will decide whether the law is constitutional, but it is very likely that it will be held unconstitutional, because the judge would not have granted injunctive relief if he hadn’t felt the law is void.

On May 8, the Texas House defeated HB 4416, 78-69. It would have made it more difficult for a party to remain on the ballot. It would have increased the vote test from 5% to 10%. It would not have changed the alternate vote test, polling 2% for Governor. The floor debate featured major party legislators from both parties defending minor parties.

On May 21, the Texas legislature passed HB 2504, making two large changes to ballot access for minor parties, one of them very helpful and the other very hurtful. It makes it easier for a party to remain on the ballot, but it imposes filing fees on the nominees of minor parties.

The Helpful Part of the Bill

The part of the bill that makes it easier for a party to remain on puts the Green Party back on the ballot. It says a party remains on if it gets 2% for any statewide race at any of the last five elections. Greens got over 2% in 2016, so if the bill is signed, it will be on the ballot for 2020-2026. Under the old law, it went off the ballot in November 2016.

Existing law says a party remains on if it either polled 2% for Governor, or 5% for any statewide race. It is difficult for minor parties to poll 2% for Texas Governor. The Libertarian Party has only polled 2% for Governor twice (1990 and 2010). No other third party has polled as much as 2% for Governor of Texas since 1974, when La Raza Unida did it.

Under the old law, a party also stayed on the ballot if it polled 5%. This is easy in years when one of the major parties skips running someone for a statewide office. In those races, minor parties always poll over 5%. But when both major parties run someone for every statewide office, it is difficult for minor parties to poll 5%. Both major parties filled their tickets in 2002 and 2016. In 2002, neither the Green nor the Libertarian Parties managed to remain on. In 2016, the Libertarians scraped by with 5.2% for one race, but the Greens went off.

Therefore, changing the vote test for any statewide office from 5% to 2% is a huge advantage for minor parties. If this had been the law in the past, the American Party would have been on the ballot in Texas in 1970 and 1972. Also it would not have needed to petition in 1974 and 1976. The Socialist Workers Party would have been on in the years 1980-1988, and probably during the 1990’s and beyond as well. La Raza Unida would have been on during the 1980’s. The Green Party would have been on in 2004-2008, and would not have needed to petition in 2010.

The Reform Party never appeared on the statewide Texas ballot (Ross Perot used the independent procedure both times he ran in Texas), but probably if this bill had been law in Texas back then, the Reform Party would have chosen to qualify in Texas and would have probably remained on during the 2000’s decade.

Assuming the bill is signed, Texas will be the 33^rd state that has made it easier for parties to stay on, during the last fifty years. The others are: Alaska 1997, Arizona 1992, Arkansas 1977, California 2014, Colorado 1998, Delaware 1978, D.C. 1999, Florida 1999, Georgia 1986, Hawaii 1999, Idaho 1969, Louisiana 2004, Maine 2009, Maryland 2003, Massachusetts 1990, Michigan 2002, Minnesota 2001, Montana 1991, Nebraska 2017, Nevada 1993, North Carolina 2017, North Dakota 2005, Ohio 2013, Oklahoma 2018, Oregon 2013, Rhode Island 1994, South Dakota 2018, Tennessee 1972, Utah 2018, Vermont 1977, Virginia 1991, and Wyoming 1998.

No federal court has ruled that any state’s vote test is too high to be constitutional. All of the changes listed above were obtained by persuading state legislatures to ease the law.

The Hurtful Part of the Bill

The bill also requires the nominees of parties that nominate by convention to pay the same filing fees that candidates in a primary must pay. Texas filing fees are: U.S. Senate $5,000; statewide appeals court judges $1,875; other statewide races $3,750; U.S. House $3,125; State Senate $1,250; State House $750.

Texas has had filing fees for primary candidates since 1907. Back then, only the Democratic Party held primaries, and that party set the amount of filing fees. They were used to help the party pay to administer its own primary. Back then, the government was not involved with primary elections.

In 1972 the U.S. Supreme Court ruled in Bullock v Carter that the state must have an alternative to filing fees, at least for candidates who can’t afford the fees. So the legislature provided that the government would pay to administer primaries, although the fees still go to the parties. Also the legislature provided for petitions in lieu of filing fee. These petitions are 5,000 signatures for statewide office and 500 for district and county office. The petitions in lieu of filing fee can be circulated as early as a candidate wishes. However, the petition (for primary candidates) says that signers are not supposed to vote in the primary of any other party. The bill doesn’t authorize such restrictive language for the in lieu petition for convention candidates, but the Secretary of State might add such language anyway.

HB 2504 is worded badly, and does not explain when the convention party candidates must pay the fees. It does not say whether someone seeking a nomination must pay the fee, or only someone who has actually been nominated by a convention must pay the fee. It says the fees are paid to the County Judge, but the County Judge is not in charge of preparing the general election ballots.

A case can be made that the fees are unconstitutional as applied to convention nominees. The purpose of Texas filing fees is to keep the primary ballots from being too crowded.

Texas sometimes has crowded ballots. In 1961, Texas held a special election for U.S. Senate that had 71 candidates on the ballot.

Federal courts in Maryland and West Virginia, and the California Supreme Court, have ruled that states can’t require write-in candidates to pay a filing fee, because write-in candidates don’t cause a crowded ballot, because their names are not printed on ballots. The same logic ought to exempt convention candidates from being required to pay fees. There is no ballot at a convention that would be too crowded. At conventions, there may be paper ballots, but each separate nomination contest has its own ballot, which invariably has only one or two candidates listed. The party prepares its own ballots, or else lets convention delegates simply use a blank piece of paper.

The only states that require convention nominees to pay filing fees are Georgia and West Virginia, so there has been little case law on that point.

A New York bill that would remove party logos from general election ballots has passed both houses of the legislature, but the versions of the bill in each house differ, so it still hasn’t passed. A party logo is a small cartoon-like drawing that symbolizes that party. The bills are SB 2300 and AB 2681. If the bill becomes law, the only states with logos will be Alabama, Delaware, Indiana, Kentucky, New Mexico, and Oklahoma.

None of the bills in any state to require presidential candidates to show their tax returns, or be left off the ballot, made any headway during May, except that the California bill passed the State Senate on May 2 in a party-line vote (Democrats for).

Alabama: on April 30, Senator Cam Ward introduced SB 336. It lowers signatures for non-presidential independents and new parties from 3% of the last gubernatorial vote, to 1.5%, and moves the petition deadline from March to late April.

Arizona: in a surprise, SB 1154 was defeated in the House on May 2. It would have moved the non-presidential primary from late August to early August, and it would also have moved the petition deadlines for new parties and non-presidential indepedents to earlier dates. The new party petition deadline would have gone from February to November of the year before the election.

Colorado: HB 19-1278 passed the Senate on April 30. It makes general election ballot access for independent candidates worse, by raising the petition requirements. It does not affect presidential candidates, but it raises the signatures for other statewide candidates from 1,000 signatures to 7,000, and includes a U.S. House distribution requirement. The Governor has not signed the bill yet.

Iowa: on May 16, Governor Kim Reynolds signed HF 692. It moves the petition deadline for independent candidates, and the nominees of unqualified parties, from August to March, although it does not affect presidential candidates. The Iowa primary is in June. Courts generally strike down non-presidential independent candidate petition deadlines if those deadlines are significantly earlier than the primary.

New Hampshire: the Senate Election Law Committee passed HB 588 on May 16. It deletes the requirement that a presidential primary candidate must be registered in the party whose primary he or she is entering.

Vermont: on May 10, the House passed SB 107. It deletes the requirement that does not permit voters to sign more than one candidate petition for the same office. The bill was not the same in each house, so it must now return to the Senate, but it very likely to pass.

Alabama: on April 30, James Hall, an independent candidate for U.S. House in 2013, asked the U.S. Supreme Court to hear his ballot access case. He had been kept off the ballot in a special election because he couldn’t collect the needed 5,938 signatures in the short period permitted. The U.S. District Court ruled in his favor after the election was over, but then the Eleventh Circuit ruled 2-1 that the U.S. District Court should have found that his case was moot, and not struck down the law. This contradicts the holding of ten other circuits. With such an obvious circuit split, this case has a good chance of being accepted by the Supreme Court. Hall v Secretary of State of Alabama, 18-1362.

Arkansas: the Libertarian Party lawsuit against the new ballot access law, which almost tripled the number of signatures for new parties, will be heard on June 4.

Florida: the Democratic Party’s lawsuit against the law concerning the order of candidates on the ballot will have a trial on July 15. Jacobson v Lee, n.d., 4:18cv-262. The law says the party that won the governorship in the last election has all its nominees listed first. Republicans have won all Florida gubernatorial elections starting with 1998. On May 13, the U.S. District Court Judge in this case ruled that the state’s procedural objections to this case are invalid.

Washington: on May 15, the Ninth Circuit upheld the law that requires independent presidential candidates to file a newspaper notice at least ten days before they start to petition. The notice must say where the petitioning will be carried out. The lower court had invalidated the law, but the Ninth Circuit thought that although newspaper legal notices don’t mean much anymore, the burden is slight. De La Fuente v Wyman, 18-35208. The decision is very short, unsigned, and will not be published. The three judges were William Fletcher, Consuelo Callahan, and Morgan Christen.

South Dakota: on May 9, U.S. District Court Judge Charles Kornmann struck down the law making it illegal for out-of-state residents to contribute money for or against an initiative. SD Voice v Noem, 1:19cv-1003.

federal law: on May 21, the U.S. Court of Appeals ruled 7-3 that the Federal Election Commission is correct when it won’t let the Libertarian Party receive a bequest from a deceased donor, all at once. Instead the money must be kept in escrow and the party may only receive a relatively small portion of the money in each calendar year. Libertarian National Committee v FEC, 18-5227. Ten of the eleven judges of the circuit participated. The three who dissented are all appointees of Republican presidents. All of the judges in the majority are appointees of Democratic presidents. The party will probably ask for U.S. Supreme Court review.

Maine: on May 14, the Senate passed LD 816, 19-16. It now goes to the House.

Minnesota: on April 30, the House passed a budget bill that contained the National Popular Vote, SF 2227. But the bill died in the Senate.

Nevada: on May 21, the Senate passed AB 186. It had already passed the Assembly.

Maine: on May 14, the House voted on LD 1477, the proposed constitutional amendment to expand ranked choice voting to general elections for state office. Although most representatives voted for the bill, it needed two-thirds, so did not pass. The vote was 85-54.

Utah: in November 2019, the cities of Payson and Vineyard will use ranked choice voting for their own city elections.

Bills in Missouri and South Carolina to convert open primaries into closed primaries failed to pass, and the legislatures of those two states have now gone home for the year. The Missouri bill, HB 26, had passed the House on second reading, but did not advance after that.

Texas House Bill 4128, to replace presidential electors who don’t vote for the presidential candidate who got the most popular votes in the state, failed to pass. Texas is the only state in 2016 in which any Republican presidential electors didn’t vote for Donald Trump. One elector voted for Ron Paul, and one for John Kasich.

The first chart below shows the filing deadlines for the Republican and Democratic Party presidential primaries, as well as the first day for filing.

The second chart shows how presidential candidates get on presidential primary ballots. The California entry depends on whether SB 505 passes, but it probably will; it has already passed the State Senate.

No one knows yet if Maine will have a 2020 presidential primary, but the charts include entries for Maine that will be in effect if the legislature authorizes a presidential primary.

States that will provide presidential primaries to parties other than the Democratic and Republican Parties are Arizona, California, Delaware, D.C., Idaho, Maine (if there is any presidential primary), Massachusetts, Minnesota, Missouri, Montana, Nebraska, New York, North Carolina, Ohio, Oklahoma, South Dakota, Utah, and Vermont.

This chart shows the window of filing by presidential candidates running in presidential primaries. The column "Filing Opens" shows the earliest date a candidate may file. "Deadline" is the last day to file.

In some states, the election officer of the state, or state party leaders, or both, decide which candidates to list, and the candidate need not file. For these states, the term "no filing" is in the "Filing Opens" column. For these states, the "Deadline" column has the date by which the state officials or party leaders must release the candidate list.

Many states have more than a single method for a candidate to get on the ballot. This chart only shows the easier method. When a state official puts candidates on the ballot automatically, that is deemed to be an easier method than any other method allowed.

State	Filing Opens	Deadline	Election Code	Formula for Deadline
Ala.	party discretion	Nov. 8, 2019	17-13-102	116 days before primary
Az.	Nov. 9, 2019	Dec. 9, 2019	16-242	100 days before primary
Ark.	Nov. 4, 2019	Nov. 11, 2019	7-7-203(c)	7 days after first Monday in November
Cal.	unlimited	Nov. 26, 2019	6000.2 (SB 505)	98days before primary
Colo.	unlimited	Dec. 9, 2019	HB 19-1278	85 days before primary
Ct.	no filing	Feb. 14, 2020	9-466	Sec. of State announces 74 days before primary
Del.	unlimited	Feb. 28, 2020	Title 15, sec. 3184	60 days before primary
D.C.	unlimited	March 4, 2020	B23-0212	90 days before primary
Fla.	no filing	Nov. 30, 2019	103.101	date named in law
Ga.	no filing	Nov. 1, 2019	21-2-193	date named in law
Ida.	unlimited	Dec. 11, 2019	34-732	90 days before primary
Ill.	Nov. 25, 2019	Dec. 2, 2019	10 ILCS 5/7-11	106 days before primary
Ind.	Dec. 29, 2019	Jan. 28, 2020	3-8-3-4, 3-8-2-4	10 days before 88 days before primary
Ky.	unlimited	Jan. 28, 2020	118.591	last Tuesday in January
La.	Dec. 4, 2019	Dec. 6, 2019	1280.22	Friday after first Wednesday in December
Me.	Nov. 1, 2019	Dec. 7, 2019	LD 1626	approx. 2 weeks before Dec. 21
Md.	no filing	Feb. 8, 2020	Art. 33, sec. 8-502	80 days before primary
Mass.	no filing	Jan. 3, 2020	Ch. 53, sec. 70E	first Friday in January
Mich.	no filing	Nov. 8, 2019	168.614a	second Friday in November
Minn.	no filing	Dec. 31, 2019	207A.13	63 days before primary
Miss.	no filing	Jan. 15, 2020	23-15-1089	date named in law
Mo.	Nov. 26, 2019	Dec. 24, 2019	115.761	eleventh Tuesday before primary
Mt.	Jan. 9, 2020	March 2, 2020	13-10-405	85 days plus 7 days before primary
Neb.	no filing	February 2020	no deadline in law	Secretary of State discretion, but in February
N.H.	Nov, 4, 2019	Nov. 15, 2019	655:47	third Friday in November
N.J.	unlimited	March 30, 2020	19:25-3	64 days before primary
N.M.	no filing	Feb. 15, 2020	1-15A-5	date named in law
N.Y.	Feb. 24, 2020	March 2, 2020	Ch. 17, 6-158.1	ninth Monday before primary
No.C.	no filing	Dec. 4, 2019	163A-1253	90 days before primary election
Ohio	unlimited	Dec. 11, 2019	3513.121	90 days before primary election
Okla.	Jan. 13, 2020	Jan. 15, 2020	20-102	Wednesday after 2nd Monday in January
Ore.	no filing	March 2020	no deadline in law	Secretary of State discretion, but in March
Pa.	Jan. 28, 2020	Feb. 18, 2020	Title 25, sec. 2868	ten weeks before primary
R.I.	Jan. 23, 2020	Jan. 25, 2020	17-12.1-4	94 days before primary
So.C.	undetermined	undetermined	political parties decide date	dates are set by political parties
So.D.	unlimited	Mar. 31, 2020	12-5-3.14	last Tuesday in March
Tenn.	nofiling	Dec. 19, 2019	2-5-205	third Thursday in December
Texas	Nov. 9, 2019	Dec. 9, 2019	172.023	second Monday in December
Utah	July 1, 2019	Oct. 15, 2019	20A-9-803	date named in law
Vt.	unlimited	Dec. 15, 2019	Title 17, sec. 2702	date named in law
Va.	undetermined	undetermined	24.2-544.B	State Election Board sets dates by Aug. 1, 2019
Wash.	no filing	Jan. 7, 2020	29A.56	53 days before primary
W.V.	Jan. 13, 2020	Jan. 25, 2020	3-5-7(c)	last Saturday in January
Wis.	no filing	Jan. 10, 2020	Title 2, sec. 8.12(1)(b)	first Friday after first Tuesday in January

The chart below shows how presidential candidates get on presidential primary ballots. The California entry depends on whether SB 505 passes, but it probably will; it has already passed the State Senate.

No one knows yet if Maine will have a 2020 presidential primary, but the charts include entries for Maine that will be in effect if the legislature authorizes a presidential primary.

States that will provide presidential primaries to parties other than the Democratic and Republican Parties are Arizona, California, Delaware, D.C., Idaho, Maine (if there is any presidential primary), Massachusetts, Minnesota, Missouri, Montana, Nebraska, New York, North Carolina, Ohio, Oklahoma, South Dakota, Utah, and Vermont.

State	Alternative #1	Alternative #2	Election Code
Alabama	500 signatures and fee set by party	– –	17-13-102 & party rules
Arizona	500 signatures of party members	Already on ballot in two other states	16-242
Arkansas	Fee set by party	– –	7-7-301(a) & party rules
California	on one other state’s primary ballot	Qualified for primary season matching funds	Senate Bill 505, pending
Colorado	$500	5,000 signatures	1-4-1204
Connecticut	discussed in the news media	Petition of 1% of registered party members	9-465, 9-469
Delaware	eligible for primary matching funds	500 signatures of party members	Title 15, 3184
D.C.	lesser of 1,000 sigs or 1% pty members	– –	1-1001.05(b)(1)
Florida	state party chooses	– –	103.101
Georgia	state party chooses	– –	21-2-193
Idaho	fee of $1,000	– –	34-732
Illinois	3,000 signatures	– –	10 ILCS 5/7-11
Indiana	4,500 signatures (500 in each C.D.)	– –	3-8-3-2
Kentucky	fee of $1,000	5,000 signatures of party members	118.591
Louisiana	fee of $750	6,000 signatures of party members	Tit. 18, 1280.22
Maine	2,000 signatures	– –	LD 1626
Maryland	Discussed in the news media	3,200 signatures of party members	Art. 33, 8-502(c)(2)
Mass.	Discussed in the news media	2,500 signatures of party members or indps	Ch. 53, sec. 70E
Michigan	Discussed in the news media	state party chooses any additional names	Chap. 168.614a
Minnesota	state party chooses	– –	207A.13
Mississippi	discussed in the news media	500 signatures	23-15-1089
Missouri	fee of $1,000	If indigent, 5,000 signatures	Tit. 9, 115.761
Montana	primary matching funds + fee of $1,740	500 signatures + fee of 1% of US Sen salary	13-10-404,13-10-202
Nebraska	discussed in the news media	300 signatures of party members	32-614
New Hamp.	fee of $1,000	If indigent, 100 signatures	Tit. 53, 655:48
New Jersey	1,000 signatures of party members	– –	19:25-3
New Mex.	discussed in the news media	petition of 2% of last pres. vote	1-15A-5, 1-15A-6
New York	5,000 signatures of party members	– –	Ch. 17, 2-122b
No. Car.	discussed in the news media	– –	163A-1253
Ohio	raise $5,000 from each of 20 states	1,000 signatures	3513.12,3513.121
Oklahoma	fee of $2,500	6,000 signatures	Tit. 26, 20-102
Oregon	discussed in the news media	5,000 signatures of party members	Tit. 23, 249.078
Pennsyl.	2,000 signatures of party members	– –	Tit. 25, 249.078
Puerto Rico	chosen by party & submit delegates	– –	Art. 8.021
Rhode Is.	1,000 signatures	– –	17-12.1-4
So. Caro.	fee (amount to be set by party)	– –	7-11-20 & party rules
So. Dakota	state party decides	petition of 1% of party’s last gub. vote	12-6-7
Tennessee	discussed in the news media	2,500 signatures	2-5-205(a)(1)
Texas	fee of $5,000	5,000 signatures	party rules
Utah	state party chooses + $500	– –	20A-9-803
Vermont	1,000 signatures plus $2,000	If indigent, fee is $300	Tit. 17, sec. 2702
Virginia	5,000 signatures	– –	24.2-545
Wash.	state party decides	1,000 signatures	29.19.030
West Va.	fee of $2,500	– –	3-5-8
Wisconsin	discussed in the news media	8,000 signatures	Tit. 2, sec. 8.12(1)(c)

States that don’t have government-administered presidential primaries in 2016 are Alaska, Hawaii, Iowa, Kansas, Nevada, North Dakota, and Wyoming. It is still not settled whether Maine will have one. The legislature will decide in June.

The rules for Republican presidential primary are similar to the Democratic rules above, except that in New York, no petition is required for Republican candidates. In the states in which the party sets the amount of the filing fee, Republican filing fees are invariably much higher.

Some of these rules may change in the next few months.

During May, Congressman Justin Amash (R-Michigan) gained considerable publicity for saying that impeachment for President Trump is justified. No other current Republican member of Congress has expressed that viewpoint. This had led to speculation to Amash might seek the Libertarian presidential nomination. His public stands over the years already made him the member of Congress must in sync with libertarian views, on spending, war, and foreign policy.

On May 4, the Minnesota Independence Party voted to become the Minnesota state affiliate of the Alliance Party, a new national party that holds itself out as centrist. The Minnesota Independence Party was once the state affiliate of the Reform Party. It is not currently ballot-qualified in Minnesota, but it has enough organizational strength to have placed Evan McMullin on the November 2016 ballot for president. Its greatest triumph was winning the 1998 gubernatorial election for Jesse Ventura, and it also elected a State Senator in 2002, Sheila Kiskaden.

On April 13, Socialist Action nominated Jeff Mackler for president, and Heather Bradford for vice-president. Socialist Action has never before placed a presidential nominee on the ballot of any state. It did nominate Mackler for president in 2016, but it did not place him on the ballot anywhere. Many of the leader of Socialist Action were once members of the Socialist Workers Party.

The Constitution Party will hold its 2020 presidential convention in Charlotte, North Carolina, the same city in which the Republican Party meets. The Constitution Party meeting will be in April or May.

On May 7, Connecticut held a special election to fill the vacancy in the 130^th House district. An independent candidate, Kate Rivera, placed second, ahead of the Republican nominee. The totals are: Democratic 466; Rivera 343; two other independent candidates 139; Republican 39.

On April 2, Ashland, Wisconsin, held an election. Wahsayah Whitebird, an open member of the Communist Party, was elected to the city council, defeating an incumbent in Ward Six. The vote was 52-42. Ashland has a population of 8,216, and has twelve city councilmembers.

On April 29, San Diego city councilman Mark Kersey said he has switched his voter registration from Republican to independent. San Diego is the nation’s eighth largest city, with a population of 1,420,000. It has nine councilmembers.

The Federal Election Commission has recently published two useful reference books. Combined Federal/State Disclosure and Election Directory 2019 has names and contact information for state election officials. It also has a list of state legislative committees that handle election law bills. The FEC also published Federal Elecdtion Campaign Laws. Both books are free and can be requested by phoning 800-424-9530.

The May 1 B.A.N. said that the Colorado 2020 presidential primary will be March 10, but actually it will be March 3.