TENTH CIRCUIT SAYS STATES CAN’T REPLACE PRESIDENTIAL ELECTORS WHO "DISOBEY"

On the evening of August 20, the Tenth Circuit issued an opinion in Baca v Griswold, 18-1173. This is the case filed in 2016 by three Colorado Democratic presidential electors who tried to vote for someone other than Hillary Clinton. The Secretary of State, Republican Wayne Williams, was presiding over the Colorado meeting of the presidential electors. He told them that if they didn’t vote for Clinton, he would replace them on the spot. Two of them then agreed to vote for Clinton, but one of them, Michael Baca, refused. So, the Secretary of State then removed him as an elector. The other electors present chose someone who happened to be nearby as his replacement.

The three electors then sued. The U.S. District Court had refused any relief for procedural reasons, but the Tenth Circuit ruled 2-1 that the U.S. Constitution does not permit a state to interfere with the liberty of a presidential elector. The dissenting judge did not disagree with the substance of the majority opinion, but she felt the case is moot. The opinion is by Judge Carolyn B. McHugh, an Obama appointee. It is also signed by Judge Jerome Holmes, a Bush Jr. appointee. The dissent is by Judge Mary Beck Briscoe, a Clinton appointee.

This is the first judicial opinion that finds that presidential electors, once chosen, have the autonomy to vote for anyone for president who meets the constitutional qualifications (age, citizenship, residence in the U.S., and natural-born). There is only one opinion that has held the contrary view, Guerera v Washington. That case upheld the authority of a state to fine a presidential elector $1,000 if he or she votes for someone other than the candidate who won the most popular votes in that state.

The reason there are only two court opinions on this subject is because before 2016, no state had ever tried to interfere with the ability of a presidential elector to vote for someone other than the candidate who had carried that elector’s state.

There were other lawsuits on this subject in 2016, in California and Minnesota, but the courts didn’t decide the main issue because they felt the cases were moot or otherwise procedurally flawed.

The Tenth Circuit opinion points out that there have been 166 instances when a presidential elector did not vote for the candidate who had carried that elector’s state. Most of these votes concerned a "deviant" for vice-president, not president. The Tenth Circuit points out that Congress has always counted these votes.

The Tenth Circuit depended on 18^th and early 19^th century British and American dictionaries to learn the meaning of "elector". One definition was "He that has a vote in the choice of any officer." Another was "a person who has a right to elect or choose a person into an office." Noah Webster defined an elector as "one who elects." He defined "elect" as "to choose, select for favor, prefer."

The Tenth Circuit depended on the debates of the Constitutional Convention, and also on the Federalist Papers, numbers 64 (by John Jay) and 69 (by Alexander Hamilton). The opinion is 117 pages. The dissent is only seven pages.

If the U.S. Supreme Court hears either this case, or the Washington state case, and it does not find any procedural flaws preventing a substantive decision, it will probably agree with the Tenth Circuit.

The Tenth Circuit decision is far more thorough and scholarly than the Washington State Supreme Court decision. The Washington State Supreme Court mostly leaned on the U.S. Supreme Court decision Ray v Blair, 343 U.S. 214, a 1952 case from Alabama. Ray v Blair held that political parties have a right to require candidates running in a primary for presidential elector to pledge to support the party’s eventual nominee. At the time the Alabama Democratic Party chose candidates for presidential elector in a primary, but no state party any longer chooses presidential elector candidates in a primary; they are always chosen in party meetings (except that in Pennsylvania, the presidential candidate chooses them). And even back then in Alabama, the Democratic Party had no ability to enforce the pledge.

Consequences: Electoral College Will Lose Public Support

If the U.S. Supreme Court agrees with the Tenth Circuit, the electoral college will lose public support. Once the voters realize that the relatively anonymous individuals who become presidential electors have the right to choose the president, regardless of the popular vote, they will want to change the system. Already polls constantly show that most voters support a national popular vote to choose the president.

Tara Ross, one of the leading supporters of the electoral college, writes on pages 115-116 of her book, Enlightened Democracy (2^nd edition, 2012) that she favors a constitutional amendment to remove the individual electors, and to make the popular vote within each state have the automatic effect of casting that state’s electoral votes.

Some individuals believe that in the future, political parties will vet their nominees for presidential elector and will only nominate candidates whom, they believe, absolutely will not vote for anyone other than the party nominee. But past "faithless" presidential electors were virtually always party stalwarts, who kept their plans secret from the party organization that nominated them.

Consequences: Sore Loser Laws

Another consequence, if the U.S. Supreme Court upholds the Tenth Circuit, is that the logical and legal basis to exclude "sore losers" for president from the November ballot disappears. Until 2012, no state had ever kept anyone off the November ballot just because he or she had run in the presidential primary of a different party.

That is because, in the past, everyone understood that the true candidates in November are the candidates for presidential elector. In the past, voters could vote for individual candidates for presidential elector, a system that survived in one state as recently as 1980. Back then, it was clear that it didn’t make sense to apply a "sore loser" law for president, because the true candidates in the general election, the elector candidates, had not themselves run in any presidential primary. They weren’t "sore losers."

But once all states eliminated the ability of voters to vote for separate presidential elector candidates, people forgot that presidential candidates’ names appear on the November ballot not as candidates, but as markers for competing slates of elector candidates. So states began applying "sore loser" laws to presidential candidates.

In 2012, Michigan kept Gary Johnson off the November ballot as the Libertarian nominee because he had run in the 2012 Republican presidential primary. In 2016, independent candidate Rocky De La Fuente was kept off the ballot in Alabama, Arkansas, and Pennsylvania because he had run in Democratic presidential primaries.

A U.S. Supreme Court opinion upholding the Tenth Circuit would require a re-thinking of "sore loser" laws for president.

Consequences: Tax Returns Laws

Many bills have been introduced in state legislature in 2017-2019, to keep presidential candidates off the November ballot if they haven’t released their income tax returns. None of them have passed (the California bill only relates to presidential primaries). Most of these bills provide that presidential electors may not vote for anyone who hadn’t released tax returns. But under the Baca decisions, these laws would be unconstitutional, because they would be telling the presidential electors whom they can or can’t vote for.

EIGHTH CIRCUIT KEEPS LIBERTARIANS ON ARKANSAS BALLOT

On August 21, the Eighth Circuit denied a request from the Arkansas Secretary of State to remove the Libertarian Party from the 2018 ballot. Libertarian Party of Arkansas v Thurston, 19-2503. The order does not identify the three judges who made the decision.

The U.S. District Court earlier this year had enjoined the new law that requires 26,745 signatures. The Libertarian Party complied with the old law, 10,000 signatures. Then the state asked the Eighth Circuit to issue a stay of the U.S. District Court decision. The Eighth Circuit will hear the state’s appeal in December, but it is likely that the state will lose then also, because if the judges were sympathetic to the state’s case, they would have issued the stay.

The state’s brief to the Eighth Circuit had said that the District Court decision is contrary to most other ballot access decisions, but the state’s brief didn’t mention that the 3% petition law in Arkansas had already been struck down twice in the past, in 1996 and 2006. The Libertarian Party naturally pointed out this omission.

On July 30, California Governor Gavin Newsom signed SB 27, which says that no one can appear on a presidential primary ballot without first disclosing federal income tax returns for the last five years. California thus became the first state to enact such a law.

Within a week, five federal lawsuits, and a state lawsuit, had been filed to overturn the law. The state lawsuit depends on the California Constitution, which says in Article II, sec. 5(c), "the candidates on the (presidential primary) ballot are those found by the Secretary of State to be recognized candidates throughout the nation or throughout California."

The State Supreme Court is not obliged to hear any case, but on August 21 it accepted the case, Patterson v Padilla, S257302, and expedited it. The plaintiffs are the California Republican Party and Jessica Patterson, the party’s chair. All the briefs must be filed by September 11. Patterson will argue that President Donald Trump clearly is a "recognized" presidential candidate, and therefore the state Constitution requires that he be listed on the Republican presidential primary ballot, whether he turns over income tax returns or not. In preliminary briefs, the state did not dispute that Trump is "recognized", but argued that the Constitution does not really require the Secretary of State to do anything. However, that position is undermined by the existence of a 1992 state superior court decision, LaRouche v Eu, which told the former Secretary of State, March Fong Eu, to list Lyndon LaRouche on the Democratic ballot.

The Court also asked the Secretary of State to furnish "any guidelines, including internal measures and protocols, that the Secretary of State has employed in the intervening decades (since 1972) to assess who is a ‘recognized’ candidate for purposes of California Constitution, article II, section 5."

There will probably be oral argument in October. It is plausible that the state constitutional issue will be decided before any of the federal lawsuits are decided.

The federal lawsuits argue that the California law violates the U.S. Constitution. Four of them are filed in the Eastern District, which is in Sacramento. They include one filed by President Trump, one filed by the Republican National Committee, and two by various voters. One is filed in the Southern District, in San Diego, by Rocky De La Fuente, who plans to run in Republican primaries in 2020. The Secretary of State is trying to persuade the federal court in San Diego to send De La Fuente’s case to Sacramento. Although De La Fuente’s case was the first one to be filed, the fight over whether it should be transferred has delayed it.

The federal cases in Sacramento are before U.S. District Court Judge Morrison England, a Bush Jr. appointee. The case in San Diego is before Judge William Hayes, a Clinton appointee.

Editorials in daily newspapers, and magazines, appear to be unanimous against any bill that requires presidential candidates to be left off any ballot unless they release their income tax returns. Such editorials have run in the Los Angeles Times, the San Jose Mercury-News, the Sacramento Bee, the Tacoma News-Tribune, and The New Republic. As far as is known, no publication has editorialized in favor of such bills.

Many election law cases are pending in the U.S. Supreme Court, or about to be. The Court hasn’t decided yet whether to hear any of them.

Alabama: Hall v Merrill, 18-1362, concerns whether a petition of 3% of the last gubernatorial vote, as applied to a U.S. House independent, is constitutional in a special election, when the petitioning period is short.

Alaska: Thompson v Hebdon, 19-122, is about the state’s campaign finance laws, which do not permit candidates for state office to accept more than a token amount of contributions from people who don’t live in Alaska.

Connecticut: Feehan v Marcone, 18-470, is a challenge to the state’s refusal to hold a new legislative election in one district. The candidate who lost the election filed the case because the margin by which he lost is a smaller number than the number of voters who were accidentally given a ballot that omitted that race. The state courts refused to give any relief, because they said the error was not made on purpose and there is no proof that the outcome would have been different without the error.

Delaware: the state is asking the court to overturn Adams v Cooney. That is the Third Circuit decision that struck down the state’s provision that all judges on most of the state courts must be members of one of the two largest parties. The cert petition hasn’t been filed yet, but the state already won permission to get more time to file. 19A57.

Washington: proponents of a local initiative challenge the state court ruling that even if an initiative petition has enough signatures, local election officials can keep it off the ballot if they don’t believe the measure would be constitutional. Save Tacoma Water v Port of Tacoma, 18-1518.

Washington (2): some 2016 presidential electors are asking the U.S. Supreme Court to reverse the State Supreme Court, which upheld fining them $1,000 because they wouldn’t vote for Hillary Clinton. The cert petition hasn’t been filed yet, but the electors have already won permission to get more time to file. 19A138.

federal law: the National Committee of the Libertarian Party is asking the U.S. Supreme Court to reverse the D.C. Circuit, which upheld a ruling of the Federal Election Commission that does not permit the party to receive a bequest of $217,734 from a deceased individual, all at once. Instead the money must remain in escrow and the party can only get the money in small chunks, each year. Libertarian National Committee v FEC, 19-234.

The bill in the U.S. House to make the District of Columbia a state, HR 51, now has 218 co-sponsors. However, two of them, the Delegates from Guam and the Northern Mariana Islands, can’t vote, so the bill still only has 216 voting co-sponsors. There are 435 voting members. All of the sponsors are Democrats. Speaker Nancy Pelosi is not a co-sponsor.

The bill for Puerto Rico statehood, HR 1965, now has 21 co-sponsors.

The Coalition for Free & Open Elections (COFOE) held its annual board meeting on August 18 in Lancaster, Pennsylvania. COFOE is a loose coalition of most of the nation’s nationally-organized minor parties, and it includes allied groups who care about ballot access. The board voted to appropriate some funds to help pay for to ballot access lawsuits that are about to be filed. One will challenge the North Carolina ballot access requirements for independent candidates, and one will challenge the November 2019 petition deadline for petitions to recognize a party in Arizona.

The new chair of COFOE is Charles Sherrouse, the Green Party representative. COFOE obtains all its income from BAN readers who contribute using the coupon on the back page. COFOE thanks everyone who has contributed since it was founded in 1985.

Iron Curtain, the Crushing of Eastern Europe 1944-1956, by Anne Applebaum, 2012, Doubleday, 566 pages.

This is the history of how, in 1945, the Soviet Union gained control of Poland, Czechoslovakia, Hungary, East Germany, Rumania, and Bulgaria.

In 1945, the Soviet Union believed that the Communist Parties of those nations could win free elections, so there were some relatively free elections in 1945 and 1946. But it soon became apparent that in none of those countries was the Communist Party popular enough to win. So, the Soviet Union and the local Communist Parties then destroyed democracy in those countries (except that the Soviet Union voluntarily gave up control over eastern Austria, and Yugoslavia pulled away from Soviet control). Opponents of the Soviet Union were arrested and sometimes deported; voluntary organizations that were not under Communist control were disbanded (even hiking and chess clubs); opposition newspapers were deprived of newsprint; and the election process was degraded.

Chapter Nine, "Politics", describes how fair elections were destroyed. Sometimes the secrecy of the ballot was nonexistent. Sometimes candidates unfavorable to the regime were removed from the ballot on technicalities, especially in southeast Poland. Sometimes hundreds of thousands of voters were removed from the voting rolls. Sometimes supporters of the regime voted multiple times, under the protection of election authorities. The so-called random procedure to determine which parties should be listed first on the ballot was manipulated to guarantee the Communist Party was listed first. Some of the opposition parties were infiltrated to bring them under Communist Party control. There were instances of the authorities suppressing the correct vote totals, and instead they were replaced with manufactured election returns.

Most of these practices have also appeared, to a lesser extent, in the United States.

The book is highly readable, but of course it is also somewhat depressing. It was a finalist in 2012 for the National Book Award.

On August 21, the Texas Secretary of State posted his interpretation of the law passed earlier this year that says convention party candidates must pay filing fees. The law itself is very unclear, and does not explain whether it is just party nominees who must pay the fee, or everyone who files a notice saying he or she is seeking the nomination of a convention party. Currently the convention parties on the Texas ballot are the Libertarian and Green Parties.

The Secretary of State says anyone seeking the nomination of a convention party must pay the fee, and that it is due December 9, 2019. The conventions are in March 2020.

The law provides for petitions in lieu of the filing fee, and if they are used, they are also due December 9. But the Secretary of State still hasn’t furnished the petition forms. It is very likely that his interpretation violates due process. Numerous ballot access decisions have struck down attempts by states to make restrictive ballot access changes in the middle of the campaign season. This point will probably be raised in the ballot access lawsuit now pending in U.S. District Court, Miller v Doe.

In the meantime, the chair of the Texas Libertarian Party has asked the Secretary of State to reconsider.

On August 1, the Alaska Division of Elections ruled that the Libertarian Party is not ballot-qualified for president, even though it got 6.05% of the vote for President in 2016.

Alaska has two kinds of ballot-qualified party, those that are qualified for all office, and those that are qualified only for President. The latter type is called a "Limited Political Party." Generally, a limited political party keeps its status by polling 3% for president. However, the Elections Division says the Libertarian Party lost its status as a "Limited Political Party" when it failed to poll as much as 3% for president in 1992. The interpretation violates common sense, because a party’s latest presidential vote showing is surely more relevant than its vote 27 years ago.

Arizona: on August 19, Rocky De La Fuente filed a notice of appeal to the Ninth Circuit in De La Fuente v State, 2:16cv-2419. The issue is whether the independent presidential petition is too hard. It requires approximately 37,000 signatures, and has not been used since 2008. Also it requires more signatures than the petition for an entire new party. The U.S. District Court Magistrate had upheld the law.

Arizona(2): on August 1, the Ninth Circuit expedited the lawsuit Tedards v Ducey, 19-16308. This is the case that challenges the decision by the state not to hold a special election to fill John McCain’s U.S. Senate seat until November 2020. He died in August 2018. The U.S. District Court had sided with the state.

California: as noted in the August 2019 BAN, on July 19 the Ninth Circuit upheld the petition requirement for independent presidential candidates. De La Fuente v Padilla. The plaintiff did not ask for a rehearing, but he may ask the U.S. Supreme Court to hear the case.

California(2): the Ninth Circuit will hear Merritt v Padilla, 18-55457, in Pasadena. This is the case over whether the First Amendment permits the state to censor a candidate’s statement in the Voters Pamphlet. The state deleted the candidate’s description of himself as an independent candidate.

Colorado: on August 20, the Tenth Circuit upheld the state’s distribution requirement for statewide initiative petitions. The petition must obtain the signatures of 2% of the registered voters in each of the 35 State Senate districts. The U.S. District Court had struck it down, saying it violates "one person, one vote", and that the 2% should have been based on population. But the Tenth Circuit said "one person, one vote" is satisfied by using registration figures just as it is also satisfied by using population. The vote was 2-1. Semple v Griswold, 18-1123.

Maryland: on July 12, the Fourth Circuit issued an opinion in Fusaro v Cogan, 18-2167. The issue is the state policy of refusing to furnish a list of registered voters to anyone who doesn’t live in Maryland. The U.S. District Court had upheld the policy, but the Fourth Circuit said the policy may violate the First Amendment. It sent the case back to the U.S. District Court for more evidence. The case had been filed by a Virginia resident who wanted to postally mail some literature to voters in a small part of Maryland.

Michigan: on August 22, the Republican Party filed a lawsuit to overturn the state’s new independent redistricting commission. Michigan Republican Party v Benson, w.d., 1:19cv-669. The law says the commission should have four Republicans, four Democrats, and five people who are neither. The lawsuit argues that if the body will have four representatives of the Republican Party, then it is flawed because it doesn’t let the party choose those members.

Ohio: on August 7, the Sixth Circuit issued an opinion in Schmitt v LaRose, 19-3196. This is the case over whether a local elections official can reject a local initiative, even if it has enough valid signatures, because the official thinks it would be unconstitutional. The Sixth Circuit upheld the government policy. On August 13, he initiative proponents filed for a rehearing en banc, which is still pending.

Texas: on July 1, U.S. District Judge Vanessa Gilmore enjoined a Houston requirement that city initiatives can only be circulated by registered voters in Houston. Pool v City of Houston, s.d., 4:19cv-2236. The city had not tried to defend the constitutionality of the law, but had argued the plaintiffs lack standing. The case has since been dismissed and it is expected the city will repeal the requirement.

Iowa: on August 2, the Libertarian Party filed a federal lawsuit against the new petition deadlines for independent candidates and the nominees of unqualified parties. Iowa Libertarian Party v Pate, s.d., 4:19cv-241. Until 2019, the deadline had been in mid-August; now it is in March.

Minnesota: on August 21, the Libertarian Party filed a federal lawsuit against the law that says that petitions for independent candidates and the nominees of unqualified parties must say that the signer "does not intend to vote" in the upcoming primary. Libertarian Party of Minnesota v Choi, 0:19cv-2312.

California: on August 14, SB 212 passed the Assembly Elections Committee. It allows non-charter city and counties to use ranked choice voting for their own elections. Currently only charter cities and counties can do that.

New Hampshire: on August 9, Governor Chris Sununu vetoed HB 706, which would have set up a nonpartisan redistricting commission.

New York: Governor Andrew Cuomo still hasn’t acted on either A8176, or A8228. It has been over two months since the legislature sent those bills to him. The former sets up the procedures and the date for the 2020 presidential primaries; the latter relaxes the date for voters to switch parties in advance of any primary.

Pennsylvania: although the Senate passed SB 300 in June, the House still hasn’t acted on it. It would let independent voters choose a partisan primary ballot.

Puerto Rico: on August 2, Governor Ricardo Rossello (who has since resigned) signed SB 1323, which moves the Democratic presidential primary from June to March 29.

An initiative is circulating in Alaska to establish a "top-four" system. Parties would no longer have nominees (except for President). All candidates would run in the August primary. Then, the top four candidates would be the only candidates who could appear on the November ballot. The general election (but not the primary) would use ranked choice voting. The initiative also includes some campaign finance restrictions. It needs 28,501 signatures. If it finishes the petition by early 2020, it will be on the November 2020 ballot; otherwise it will be on in 2022.

Ten states let state income taxpayers use their tax form to send a small donation to a political party. For 19 years, BAN has carried a chart showing the amounts for each party, usually in the September issue. That chart will appear in the October 2019 issue. It is not in this issue because Virginia still hasn’t furnished the data.

The Federal Election Commission has published 2020 dates for presidential and congressional primaries. https://transition.fec.gov/pubrec/fe2020/2020pdates.pdf

The FEC emphasizes that the dates are not necessarily final. In a few months, a later version will be published.

On August 23, David Koch died at the age of 79. He had been the Libertarian Party’s vice-presidential nominee in 1980, the year the party got on the ballot in all fifty states and the District of Columbia. That was the first time any presidential candidate, running outside the major parties, had got on the ballot in all jurisdictions since 1892. The feat was only possible because David Koch was permitted by federal campaign rules to spend as much of his own money as he wished. He spent enough money on paid circulators to complete every needed petition. The original federal campaign act of 1974 would not have permitted unlimited spending by a candidate on his own campaign, but the U.S. Supreme Court decision Buckley v Valeo in 1976 had struck down that part of the law.

Even with Koch’s money, it was an extremely difficult task for the Libertarian Party to get on all ballots for president in 1980. It had to do a massive voter registration drive in California during 1979 to put the party on that ballot. Libertarian registration in March 1979 in California was only 7,677, but due to the paid registration drive, it exceeded the required 71,322 registrations by the January deadline.

The party also had to complete 38 petition drives, including seven in excess of 25,000 signatures: Florida 42,172; Georgia 57,540; Maryland 61,891 plus a separate petition of 10,000; Massachusetts 39,246; Oklahoma 32,768; Oregon 45,558; and Pennsylvania 48,134.

David Koch left the Libertarian Party following the 1983 presidential convention. He had backed Earl Ravenal for the presidential nomination, but David Bergland won that nomination instead.

The Green Party will hold its national convention in Detroit, July 9-12. If it chooses to use its presidential primaries, it will have them in California, Delaware, D.C., Maine, Massachusetts, Missouri, New York, North Carolina, and Utah. It also could have them in Arizona, Montana, and Nebraska, if it gets on the ballot in those states.

Louisiana elects all its state officers on October 12, 2019. The only parties, other than the Democratic and Republican Parties, that have any candidates running are the Libertarian Party and the Independent Party. The Independent Party has a gubernatorial candidate, Gary Landrieu; also one candidate for State Senate and seven for State House. The Libertarian Party has two State Senate candidates and four State House candidates.

During August, tens of thousands of protesters took to the streets of Moscow, in reaction to government rulings that the independent candidates for Moscow city council did not have enough valid signatures.

On August 19, Pierre Nantel, a member of the Canadian Parliament from Quebec, switched his party membership from New Democratic to Green. He said his old party has not been sufficiently interested in fighting global warming.

The Daily Beast published an interview with former Rhode Island Governor Lincoln Chafee on August 22. He said he is open to seeking the Libertarian presidential nomination. Also there are some signs that independent U.S. House member Justin Amash is changing his mind about what he will run for in 2020. He had said he would run for re-election as an independent, but now reportedly he is thinking of running instead for president, either as an independent or as a Libertarian.

The Oregon Independent Party, which has nominated by primary in the past, will nominate by convention in 2020.