MAINE BECOMES FIRST STATE TO USE RANKED CHOICE VOTING IN A PRESIDENTIAL GENERAL ELECTION

On September 6, Maine Governor Janet Mills let LD 1083 become law without her signature. This bill authorizes ranked choice voting for president in general elections. It is effective in time for the November 2020 election. This will be the first time any U.S. state has used ranked choice voting for president in the general election.

The Governor used a legal maneuver to insure that the measure would become law after the March 2020 presidential primary, so it won’t apply to the 2020 presidential primaries, but it will apply to future presidential primaries. Legislative rules say that if a Governor neither signs nor vetoes a bill, it becomes law, but not until three months after the next legislative session. The next session will start in January 2020, and will probably end in April 2020, so it will take effect three months later, or July 2020.

The Governor and many others did not want the bill to take effect for the 2020 primary because the Democrats already have a proportional system and it wasn’t clear how to implement the Democratic proportional allocation of delegates with ranked choice voting. Also the Maine presidential primary is a separate primary from the primary for other office, and the legislature didn’t appropriate any money to implement ranked choice voting in the presidential primary. But in the general election, Maine was already using ranked choice voting for Congress, so there is no additional cost.

The importance of one state using ranked choice voting for president in the general election can hardly be overstated. For over 100 years, major party campaigns have used the fear of "spoiling" to criticize and harass minor party and independent presidential campaigns.

This was especially true in 1924, when Republican orators denounced the Robert La Follette independent progressive candidacy, and warned that if voters voted for La Follette (who was a Republican U.S. Senator), no one might get a majority in the Electoral College and the U.S. House would need to choose the president.

Ever since, every important alternate presidential candidate has had to face this problem. In 2016, former New York city Mayor Michael Bloomberg considered being an independent candidate for president, but did not, citing the fear that his candidacy would "spoil" the outcome. In 2020, Howard Schultz was subject to withering criticism for entertaining the idea of an independent candidacy.

In 2004, Democrats filed dozens of challenges the Ralph Nader’s independent candidacy, for the same motives. Many anti-Trump commentators have denounced the Libertarian and Green Parties for planning to run 2020 presidential candidates. These commentators have persuaded themselves that people who vote for alternate presidential candidates would vote Democratic if the alternate candidates did not run. The lack of evidence doesn’t stop this commentary.

States have long defended repressive ballot access laws by saying they are needed to prevent "spoiling". But U.S. Supreme Court Justice John Harlan said in Williams v Rhodes, in 1968, that if this is a concern, states are free to use ranked choice voting. He wrote "The voter could be given the right, at the general election, to indicate both his first and his second choice for the Presidency – if no candidate received a majority of first-choice votes, the second-choice votes could then be considered."

But no one seemed to notice Harlan’s idea, and in 1971 the U.S. Supreme Court upheld severe Georgia ballot access laws, and mentioned the "spoiling" problem as a justification. Justice Harlan refused to sign the opinion. Jenness was written by Justice Potter Stewart, and it said that if minor party candidates are allowed on the ballot, that might lead to "frustration of the democratic process", his term for "spoiling." He only wrote one sentence

Now that one state has made ranked choice voting in presidential general elections a reality, the idea will be too visible to be kept in the dark any longer.

On September 19, U.S. District Court Judge Morrison England, a Bush Jr. appointee, enjoined the California law that requires presidential primary candidates to release tax returns. Trump v Padilla, e.d.,2:19cv-1501.

The ruling was delivered orally at the end of the hearing. The judge cited a federal law, 5 US Code Appendix 107(b): "The provisions of this title requiring the reporting of information shall supersede any general requirement under any other provisions of law with respect to the reporting of information required for purposes of preventing conflicts of interest or apparent conflicts of interest."

The federal law applies to all federal employees, even Presidents, and President Trump has complied with the federal law. The law says that no other financial disclosure can be required by any government, federal or state. So, that invalidates the California law, and there is no need for a court to consider whether the law violates the U.S. Constitution.

On September 23, U.S. District Court Judge Leigh Martin May, an Obama appointee, upheld the Georgia petition requirement for U.S. House, for independent candidates and the nominees of parties that had not polled 20% of the vote for president in the entire nation (or 20% for Governor). The requirement is a petition of 5% of the registered voters, which is usually over 20,000 signatures.

The law was passed in 1943 and no minor party candidate has ever complied with it. No independent has complied with it since 1964, and back in 1964, the petition was not due until October, no filing fee was required, and the signatures were not checked. Nowadays the petition is due in July, and a filing fee of 3% of the annual salary for a member of Congress must be paid.

The case is a Libertarian Party case, filed in 2017. Cowen v Raffensperger, n.d., 1:17cv-4660. The decision is only fifteen pages, and the first nine pages are merely a description of the law and the history of the litigation. The remainder of the decision simply says that the law was upheld by the U.S. Supreme Court in 1971 in Jenness v Fortson, as well as several Eleventh Circuit decisions.

The decision does not mention that the Supreme Court said in 1974 and again in 1977 that ballot access laws that are seldom used are probably unconstitutional. Also the decision does not mention two U.S. Supreme Court decisions that say states can’t require more signatures for an office in just part of the state, than are required for statewide office.

Ever since 2016, the Georgia rrequirement for president has been exactly 7,500 signatures. Because the U.S. House districts are approximately 20,000 signatures, the law should have been invalidated.

The decision does not have one word about any state interest in requiring so many signatures. There will be an appeal.

On August 28, U.S. District Court Judge Emily C. Marks, a Trump appointee, refused to dismiss the Libertarian Party lawsuit over access to the list of registered voters. Libertarian Party of Alabama v Merrill, m.d., 2:19cv-69. Alabama gives a free list of the registered voters to qualified parties, but charges $34,000 if an unqualified party wants the list. The state had filed a motion to dismiss the case without even waiting for any evidence, but the judge denied that motion, and now there will be a trial.

No party, other than the Republican and Democratic Parties, has been ballot-qualified statewide in Alabama since 2002. The petition requirement is 3% of the last gubernatorial vote, and the vote test for a party to remain on is 20% for any statewide race.

On August 30, two independent candidates filed a federal lawsuit against the North Carolina procedures for independent candidates. One plaintiff is running for president in 2020, and the other is running for U.S. House. Kopitke v Bell, e.d., 7:19cv-164. The North Carolina petition deadline for all independent candidates is in March, which violates Anderson v Celebrezze. Also, North Carolina now requires statewide independent candidates to collect six times as many signatures as are needed for a new party, and that violates a U.S. District Court decision from North Carolina, DeLaney v Bartlett.

The presidential candidate-plaintiff is Kyle Kopitke of Michigan, an independent presidential candidate in 2020. Kopitke was also an independent presidential candidate in 2016. The U.S. House plaintiff is Greg Buscemi, an attorney who lives in Wrightsville Beach.

Congress: on September 24, Congressmember Jaime Raskin introduced HR 4464, which would require all states to use ranked choice voting in congressional primaries and general elections. It has eleven co-sponsors, all Democrats: Donald Beyer (Va.), Steve Cohen (Tn.), Jim Cooper (Tn.), Joseph P. Kennedy III (Ma.), Ro Khanna (Ca.), James P. McGovern (Ma.), Seth Moulton (Ma.), Scott Peters (Ca.), Chellie Pingree (Me.), Ayanna Pressley (Ma.), and Kathleen Rice (N.Y.)

Democratic caucuses: the 2020 presidential caucuses in Alaska, Hawaii, Kansas, and Wyoming will use ranked choice voting.

California: on September 11, the legislature passed SB 212, which lets non-charter cities and counties use ranked choice voting to elect their own officers. Governor Gavin Newsom hasn’t acted on the bill yet. Currently only charter cities and counties may use RCV.

California (2): the city of Mission Viejo has decided to use Cumulative Voting for its city council elections, and a state court has approved the idea. However the Secretary of State, Alex Padilla, is trying to block it.

California (3): on August 29, the state Democratic Party passed a resolution endorsing proportional representation.

Massachusetts: an initiative is likely to qualify for the 2020 ballot, which would ask voters if they wish to use RCV for all primaries and general elections for federal and state office.

New York city: on November 5, 2019, voters will see Charter Amendment Number One on their ballots. It will ask if the city should use RCV in primaries and special elections for city office.

Quebec: the provisional government now favors proposing a mixed proportional representation system for provincial elections. It may go on the ballot in 2021.

On September 18, the U.S. House Oversight & Reform Committee held a hearing on HR 51, the bill to make almost all of the District of Columbia a state. The bill now has 220 co-sponsors, including 218 who are voting members of the House. Therefore, it now has a majority of the House membership. All of the co-sponsors are Democrats. If the bill passed, a tiny section of D.C., containing the most important government buildings, would be excluded from the boundaries of the new state.

On September 13, the California legislature passed SB 696, which forces the American Independent Party to change its name by October 29, or it will be removed from the ballot and all its registrants will be automatically converted to independent voters. Governor Gavin Newsom hasn’t acted on the bill yet.

The legislature says that the party name confuses voters. However, the legislature also passed AB 681 on September 13, which lets any voter change his or her party at the polls on primary election day. That bill, which also hasn’t been signed, completely obviates the need for SB 696. There are California voters who register into the American Independent Party, thinking that they have just registered as an independent voter. As AIP members, they are not free to choose a Democratic presidential primary ballot, whereas if they were independent voters, they could. But, AB 681 solves the problem for those voters, because they could instantly change to either independent, or Democratic, at the polls.

AB 681 also provides that all voters will receive a notice several months before a primary, telling them how they are registered, and which parties allow independents to vote in their presidential primary. AB 681 also says that a second notice will be sent later to all independent voters, again giving this information.

SB 696 not only bans the word "independent" in a party name; it also bans the word "independence." As shown in the chart in the August 1, 2019 BAN, 47 of the 50 states have in the past, or currently, had a party on the ballot with either "independent" or "independence" as part of its name. Those words are essential for some parties to explain their mission. For example, the Alaskan Independence Party was founded to work for secession of Alaska from the U.S., and if Alaska banned the word "independence", the party could not express its purpose.

The California bill is also flawed because it only gives the party a month to choose a new name, too little time for it to all a state conventin. In the past, when parties have voluntarily considered changing their names, it has always been at a state convention. In 1975, when the Minnesota Republican Party changed its name to the Independent-Republican Party, that was done at its state convention. When the U.S. Taxpayers Party changed its name to the Constitution Party, that was done at the national convention in 1999.

There are twelve precedents that provide that when a hostile change is made to an election law affecting minor parties or independent candidates, the change must be made in plenty of time before the next election. For example, when the Ohio legislature passed a law in September 2013, removing the four qualified minor parties from the ballot and providing they needed a petition to get back on due in July 2014, a U.S. District Court ruled that the new law could not take effect in 2014. Instead it had to wait until 2016.

At the California State Senate hearing on SB 696, witnesses were only given two minutes to speak, so it was impossible to get this information to the Senators. The time limit was arbitrary and had no purpose, because the committee only had two bills on the agenda, and there were only two witnesses on either side for SB 696. If Governor Newsom signs SB 696, the party will file a lawsuit.

A wealthy individual, Mike Fernandez, has already spent $6,000,000 on a Florida petition to institute a top-two system. The initiative already has 650,000 signatures, so it is likely to qualify for the November 2020 ballot. The initiative only applies to state and local office, not congress.

If it qualifies, it can’t pass unless it receives 60% of the vote. No top-two initiative has ever polled as much as 60% of the vote in any state. It has only passed in two states, in Washington in 2004 and in California in 2010. It has been defeated twice in Oregon, once in Arizona, once in California, and once in South Dakota.

Some state Republican Parties have recently informed their state governments not to hold a presidential primary in 2020. They include Arizona, South Carolina, Virginia, and West Virginia. There is no plausible lawsuit that could reverse these decisions, except in South Carolina. The South Carolina Republican Party rules say only a state convention can decide to cancel the presidential primary, but the action was taken by the state executive committee. So a lawsuit is considered likely in South Carolina.

The party justifies its actions by saying that it canceled some presidential primaries in other years when an incumbent Republican president was running for re-election. But in 2004, the last time the party cancelled any primaries, no Republican who had ever held any public office was running against President George W. Bush. By contrast, in 2020, there are two former Republican Governors running against President Donald Trump, Bill Weld and Mark Sanford.

STATE	YEAR	PARTY	NUMBER	VOTE	PERCENTAGE
Alabama	1970	Nat. Dem of Alabama	42 of 106	78,761	21.68
Alaska	1992	Alaskan Independence	17 of 40	11,905	12.14
Arizona	1978	Libertarian	21 of 60	17,016	7.75
Arkansas	2018	Libertarian	8 of 100	8,687	11.58
California	1970	American Independent	57 of 80	88,287	1.94
Colorado	2000	Libertarian	57 of 65	119,006	8.35
Connecticut	2004	Working Families	50 of 151	13,830	3.46
Delaware	1970	American	12 of 39	909	1.84
Florida	2002	Libertarian	73 of 120	413,590	13.34
Georgia	2004	Libertarian	4 of 180	3,481	5.11
Hawaii	2014	Libertarian	8 of 51	6,518	11.76
Idaho	2002	Libertarian	19 of 70	13,781	9.26
Illinois	2002	Libertarian	10 of 118	23,733	8.13
Indiana	1946	Prohibition	54 of 100	14,509	1.97
Iowa	1966	American Constitution	20 of 124	2,538	1.16
Kansas	2006	Libertarian	25 of 125	15,140	8.31
Kentucky	1971	American	6 of 100	1,441	4.58
Louisiana	1972	American	5 of 105	2,998	5.81
Maine	2004	Green	18 of 151	15,831	18.43
Maryland	1970	American	14 of 142	7,783	4.81
Mass.	2000	Libertarian	14 of 160	29,368	12.78
Michigan	1948	Prohibition	49 of 100	8,516	.77
Minnesota	2000	Independence	27 of 134	41,051	9.62
Mississippi	2011	Libertarian	4 of 122	3,606	11.03
Missouri	2002	Libertarian	26 of 163	12,576	4.63
Montana	1982	Libertarian	20 of 100	3,920	5.93
Nevada	1980	Libertarian	20 of 40	7,797	6.60
New Hamp	1994	Libertarian	93 of 400	24,370	21.05
New Jersey	1997	Conservative	47 of 80	42,639	2.97
New Mexico	1990	Libertarian	6 of 70	3,806	14.28
New York	1948	American Labor	115 of 150	463,558	8.44
No. Carolina	2002	Libertarian	60 of 120	95,103	8.29
No. Dakota	1976	American	7 of 100	1,988	9.52
Ohio	2000	Libertarian	30 of 99	65,088	4.94
Oklahoma	2016	Libertarian	9 of 101	11,568	8.19
Oregon	2004	Libertarian	18 of 60	25,085	4.80
Pennsylvania	1968	Constitutional	70 of 203	36,141	2.40
Rhode Island	1996	Cool Moose	13 of 100	7,262	15.64
So. Carolina	1970	Independent Party	13 of 124	6,144	4.72
So. Dakota	2018	Libertarian	4 of 70	2,902	9.69
Tennessee	1972	American	8 of 99	8,799	8.85
Texas	2006	Libertarian	88 of 150	231,098	9.05
Utah	1986	Libertarian	35 of 75	6,924	3.58
Vermont	2016	Progressive	20 of 150	18,954	43.17
Virginia	1993	Libertarian	7 of 100	12,443	8.99
Washington	1948	Progressive	48 of 99	14,523	2.93
West Virginia	1998	Libertarian	10 of 100	11,522	11.72
Wisconsin	1972	American	35 of 99	15,131	2.48
Wyoming	1992	Libertarian	6 of 60	1,283	6.51

~	Demo.	Rep.	Lib’t.	Constitn	Green	Wk Fam	Indp. Party	other
Alabama	8,047	11,372	– –	– –	– –	– –	– –	– –
Arizona	14,077	9,662	476	– –	122	– –	– –	– –
Kentucky	69,542	97,820	– –	– –	– –	– –	– –	– –
Minn.	35,052	14,465	832	– –	917	– –	1,639	1,835
N. Mex.	6,308	2,702	528	62	300	– –	– –	98
Ohio	17,475	17,475	– –	– –	– –	– –	– –	– –
Oregon	9,672	3,324	273	117	357	501	717	198
Rhode I.	8,374	2,602	– –	– –	– –	– –	– –	382
Utah	42,808	44,942	5,358	2,104	1,634	– –	– –	6,278
Virginia	28,372	10,818	– –	– –	– –	– –	– –	– –
TOTAL	239,727	215,182	7,467	2,283	3,330	501	2,356	8,791

Entries in "Other" column are: Minn., Grassroots $583 & Legalize Marijuana Now $1,251; New Mexico, Better for America; Oregon, Progressive; Rhode Island, Moderate; Utah, United Utah $3,078 & Independent American $3,200.

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
2019	239,727	215,182	3,330	7,467	– –	2,283	8,791

North Carolina held two special U.S. House elections on September 10. In the Ninth District, the vote was: Republican Dan Bishop 96,573; Democrat Dan McCready 92,785; Libertarian Jeff Scott 773; Green Party nominee Allen Smith 375.

In the Third District, it was: Republican Greg Murphy 70,407; Democrat Allen Thomas 42,738; Constitution Party nominee Greg Holt 507; Libertarian Tim Harris 394.

American Solidarity: the party recently chose Brian T. Carroll of Visalia, California, for President. It has not yet chosen a vice-presidential nominee. In 2016, when it ran Michael Maturen for president, it was only on the ballot in Colorado.

Bread & Roses: on August 28, the party announced that Jerome Segal will be its presidential nominee. It has not yet chosen a vice-presidential nominee. It was formed in 2018 and is on the ballot in Maryland.

Party for Socialism and Liberation: on September 25 the party announced that it has chosen Gloria La Riva for president and Leonard Peltier for vice-president. In 2016 the party also ran La Riva. She placed seventh in the nation with 74,392 votes, the highest presidential vote total for a party with "socialist" or "socialism" in its name since 1976.

Prohibition: on August 24, the national committee chose Phil Collins for president and Billy Joe Parker for vice-president. It is on the ballot in Mississippi.

On September 9, U.S. Senator Elizabeth Warren, a strong candidate for the Democratic presidential nomination, endorsed Kendra Brooks for Philadelphia city council, in the November 2019 election. Brooks is a Working Families Party nominee, and is not a Democratic Party nominee.

On September 16, the Working Families Party endorsed Warren for the Democratic presidential nomination. By contrast, in 2016 it had endorsed Bernie Sanders. Recently the party had interviewed several Democratic candidates before making its decision. Kamala Harris was invited for an interview, but she decided at the last minute not to attend.

The Federal Elections Commission has published Combined Federal/State Disclosure and Election Directory 2019. It has 139 pages and is free to anyone. Call (800) 424-9530 and push #2. The book has contact information for state election officials and is published every two years.

On September 6, Howard Schultz said he will not run as an independent presidential candidate. He had never actually declared, but he had set up an exploratory committee. Later he had suspended campaigning, partly due to medical reasons, but he had recovered.

The Reform Party will hold a presidential convention in March or April 2020, either in North Carolina or Florida. Darcy Richardson has withdrawn as a candidate for the presidential nomination, so Joseph Wendt is the apparent front-runner. He lives in Florida.