U.S. SUPREME COURT REFUSES TO HEAR NORTH CAROLINA INDEPENDENT DEADLINE CASE

On February 22, the U.S. Supreme Court refused to hear Kopitke v Bell, 20-897. This is the challenge to the North Carolina independent presidential petition of the first week in March. That deadline was created in 2018, and utterly contradicts the U.S. Supreme Court opinion Anderson v Celebrezze, 460 U.S. 780. That decision struck down Ohio’s March 20 independent presidential petition deadline.

Not only is the North Carolina independent presidential petition deadline earlier than the old Ohio deadline, the number of signatures (70,666 in 2020) far exceeds the Ohio requirement of 5,000 signatures. Back in 1992, the North Carolina deadline was in June, and was the third earliest in the nation.

The Fourth Circuit decision, in contrast to all twelve of the other published decisions on independent presidential petition deadlines, said that states may set the deadline on the same date as the presidential primary. This means that all the other states of the Fourth Circuit (Maryland, Virginia, West Virginia, and South Carolina) are now also free to set their deadlines in March, or, in the case of South Carolina, in February.

The Court was presented with an amicus curiae brief in this case, signed by some campaign supporters of Ross Perot in 1992. The amicus pointed out that if North Carolina had had its current law in 1992, the Perot campaign would not have happened. Perot said on the Larry King interview TV show on February 20 that he would not run for president, unless people in all fifty states put him on the ballot. But with a March 3 deadline in 1992, and a requirement of 70,000 signatures, that would have been impossible.

The U.S. Supreme Court has denied every cert petition filed by a minor party or an independent presidential candidate, over ballot access, for thirty years now. It is clear that no member of the U.S. Supreme Court cares about voting rights for people who want to vote for someone other than a Democratic or a Republican. Probably no justice is even acquainted with anyone who supports any minor party.

Justices appointed by Democratic presidents seem to think that minor party and independent candidates hurt the Democratic Party. Justices appointed by Republican presidents seem to have a strong urge to never rule against states in constitutional election law cases.

The Court has let the lower courts trample on many of its old, favorable precedents. The Court said in 1974 and again in 1977 that a ballot access law that is so difficult that is almost never used is probably unconstitutional. But in the last thirty years, cert petitions have been filed in cases in which certain states had completely blocked types of minor party or independent candidacies for decades, and those cert petitions have been rejected.

They include a case from Alabama, which hasn’t had a minor party on the statewide ballot since 2002; a case from California, which hasn’t had an independent presidential candidate on the ballot since 1992; a case from Georgia, which hasn’t had a minor party or independent candidate on for U.S. House since 1964; a case from North Dakota, which hasn’t had a minor party candidate on the ballot for state legislature since 1976; and case from Tennessee, which hasn’t had a successful third party petition since 1968.

The U.S. Supreme Court does take cases when minor parties or independent candidates win election law cases in the court below, and the state appeals. In 2005 the U.S. Supreme Court reversed a freedom of association decision from Oklahoma that the Libertarian Party had won in the Tenth Circuit. In 1997 it reversed the New Party’s Eighth Circuit opinion that had required Minnesota to allow fusion. In 1998 it reversed an independent congressional candidate’s win in the Eighth Circuit that said when public TV stations sponsor a candidate debate, they must invite all candidates who are on the ballot. In 1986 it reversed a ballot access win for the Socialist Workers Party from Washington state. In 2008 it reversed a Libertarian Party win from the Ninth Circuit concerning the top-two system of Washington state.

In none of the cases in which the minor party or independent candidate had won in the court below, and the U.S. Supreme Court then reversed, was there a circuit split (except in the Minnesota fusion case). So the theory that the Court is especially inclined to hear cases when there is a circuit split does not apply to minor party and independent candidate election law cases.

As noted above, there are twelve other published cases on independent presidential petition deadlines that did strike down the deadline and those decisions did not say the primary date has anything to do with the merits. They are from Arizona (2008), Kentucky (1980), Maine (1980), Maryland (1980), Missouri (1976), New Jersey (1984), New Mexico (1980), North Carolina (1980), Ohio (1983), Rhode Island (1976), South Dakota (2000), and Utah (1984).

On February 16, U.S. District Court Judge John A. Woodcock, a Bush Jr. appointee, enjoined the Maine ban on out-of-state circulators for initiative petitions. We the People PAC v Bellows, 1:20cv-489.

This was somewhat surprising, because Judge Woodcock had refused to grant a temporary restraining order in the same case in January. Also the ban had been upheld by the State Supreme Court in both 1998 and 2020. And it had been upheld in U.S. District Court in 1999. The state filed a notice of appeal on February 22.

Maine does not ban out-of-state circulators for candidate petitions.

The opinion quotes the former Maine Secretary of State, Matt Dunlap, as having said "It’s not normal, socially it’s not normal to walk up to perfect strangers and say ‘excuse me are you a registered voter, would you like to sign this petition’ and so it takes a particular type of personality to be able to do this." The judge quoted this to show that it is not easy for initiative proponents to find skilled petitioners who live in Maine. The record shows that there are only six professional petitioners in Maine, whereas there are hundreds of them in the nation as a whole.

On February 10, the Second Circuit refused to enjoin the new, stricter definition of "political party" passed by the New York legislature in 2020. The old law defined a party as a group that had polled 50,000 votes for Governor. The new law requires it to poll 2% for both President and Governor. Because of the new law, the Libertarian, Green, Independence, and SAM Parties were removed from the ballot as soon as the law went into effect. SAM Party v Cuomo, 20-3047.

The decision is by Judge Michael B. Park, a Trump appointee. It is also signed by Judge Steven J. Menashi, another Trump appointee, and Judge Robert D. Sack, a Clinton appointee. The judges said that the justification for removing four parties from the ballot are: (1) to improve the chances that the winner of the election will have received a majority of the vote; (2) to save money, because the state now has public funding for candidates for state office, although it doesn’t start until 2024.

Both justifications are utterly without merit. Point one could be solved if the state used ranked choice voting. Point two is easily rebutted by the existence of another Second Circuit opinion, Green Party of Connecticut v Garfield, that says if a state has public funding, it is free to confine the public funding to parties that polled 20% of the vote in the last election, or which submit a petition of 20% of the voters.

The decision falsely claims that removing a party’s qualified status is not a severe burden, because the nomiees can use the independent petition.

But the decision ignores the fact that New York is one of only eleven states in which an unqualified party cannot regain its status as a qualified party in advance of any particular election. Because New York has no such procedure, nominees of unqualified parties must use the independent candidate procedures, which means a separate petition for each U.S. House candidate, each legislative candidate, plus a petition for the statewide nominees, plus still more petitions for local office.

Just to run a full slate for all federal and state office would require 45,000 signatures for the statewide slate, 94,500 for U.S. House, 186,000 for State Senate, and 225,000 for Assembly, for a total of 550,500 signatures, and even that doesn’t include the partisan judicial races.

All these petitions must be completed within six weeks, and are due in May of the election year. The decision does not mention that the petitioning period is only six weeks, and that the deadline is May.

The decision claims that other courts have upheld similar definitions of a qualified party, all the precedents mentioned are from states that do have a procedure for a group to become a qualified party in advance of an election.

The decision says that the state has no choice but to include the presidential vote if it wants to have a test every two years, because in some presidential years, there is no other statewide office on the ballot. But the decision ignores the fact that there are other methods to measure the viability of a party, besides vote totals. Twelve states uses registration data to help determine if a party should be qualified. And some states simply keep a party on the ballot if it runs a certain number of candidates.

The decision claims that the 2% vote test is average for states, without noting that it is far more difficult for a minor party to poll 2% for president than it is for less important statewide office. There was evidence in the case about that, but the judges did not seem to see it.

The case is not over; the issue of declaratory relief is not yet settled, and there will be a trial in U.S. District Court.

On February 22, the U.S. Supreme Court refused to hear De La Fuente v Simon, 20-612. This was a case over the new Minnesota law that gives a party sole discretion over which candidates may run in its presidential primary. The Republican Party of Minnesota had only allowed President Trump to appear on its ballot.

On February 22, the U.S. Supreme Court refused to hear five appeals filed by former President Donald Trump, or his allies, over vote-counting procedures. They include four cases from Pennsylvania, and one from Wisconsin. The case numbers are 20-542, 20-574, 20-845, 20-810, and 20-882.

The Court also refused to hear a similar case from Michigan, 20-815, which had been filed by some Republican presidential electors. But that case had not even yet been heard in the Sixth Circuit, so after it is heard there, it could return to the U.S. Supreme Court.

Two more similar cases will be on the U.S. Supreme Court’s March 5 conference. They are Wood v Raffensperger, 20-887, from Georgia; and Trump v Wisconsin Elections Commission, 20-883.

Three justices wanted to hear two of the Pennsylvania cases, but it takes four justices to accept a case. The three justices are Clarence Thomas, Neil Gorsuch, and Sam Alito. Those cases are over whether the U.S. Constitution’s Article II, section one, which says, "Each state shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors."

The lawsuit is over the meaning of the word "Legislature". The Trump lawsuits argue that this means that Governors and state courts cannot be involved in drawing up rules for voting for president. However, in Arizona State Legislature v Arizona State Redistricting Commission, 576 US 787 (2015), the U.S. Supreme Court already interpreted "legislature" to mean any state governmental body with law-making responsibility. The vote was 5-4. However, in that case, the issue was over the meaning of "legislature" in Article One, which covers congressional elections. These cases are over the meaning of the word in Article Two, which covers president.

Alabama: all the briefs have been filed in the Eleventh Circuit in Libertarian Party of Alabama v Merrill, 20-13356. This is the case over whether the state can charge the Libertarian Party $36,000 to get a copy of the list of registered voters, whereas the qualified parties get the list free. Attorney David Schoen, who is now somewhat famous for having been one of former President Donald Trump’s recent impeachment defenders, is representing the Libertarian Party.

Arizona: the State Supreme Court removed independent presidential candidate Kanye West from the November 2020 ballot on September 8, but did not explain why. But it said, "An opinion will follow." However, it has been almost six months, and that opinion has not been issued. West’s Arizona petition obtained more signatures in 2020 than any other minor party or independent petition in the entire nation. He collected over 75,000 signatures to meet a requirement of 37,769. The petition was never checked; he was apparently removed from the ballot because his elector candidates didn’t file campaign finance documents, but never before had the state required electors to file such documents.

Arizona(2): on February 9, the Libertarian Party sued Maricopa County to obtain permission to have observers when the county does an audit of the vote-counting machines. Maricopa County Libertarian Party v Maricopa County, Superior Court cv2021-2205.

Arkansas: the Eighth Circuit will hear Whitfield v Thurston, 20-2309, on March 18. The issue is whether the state should have given ballot access relief during 2020 due to the health crisis. The plaintiff, an independent candidate for U.S. Senate, needed 10,000 signatures by May 1, 2020. Courts refused to put him on the ballot, but the issue of declaratory relief is still not settled.

Arkansas(2): the Secretary of State has stipulated that the injunctive relief granted to the Libertarian Party for the 2020 election, which cut the number of signatures from 26,746 signatures to 10,000, also applies to the 2022 election. The Libertarian Party will soon begin its 2022 petition.

California: on January 29, a San Bernardino Superior Court issued an opinion in Boydston v Padilla, civ-ds-1921480. It upheld the law over which voters can vote in presidential primaries. The law lets each party decide whether to let independents vote in its primary. Usually the Republican, Green, and Peace & Freedom Parties don’t allow independents to vote in their presidential primary, but the voter-plaintiffs who filed the case don’t want parties to have that power.

Illinois: on February 22, the Seventh Circuit issued a short opinion in Krislov v Cook County Officers Electoral Board, 20-1928. It said the case is moot. The plaintiff, a 2020 candidate in the Democratic primary for Supreme Court Justice, had submitted 9,542 signatures and needed 5,050. He was challenged and was told that he was 108 signatures short. He argued that when a petition has almost enough signatures, it should be considered valid, because the petition-checking process is so imprecise and subject to error. The U.S. District Court had rejected that argument.

The Seventh Circuit said his case is moot because Krislov is not likely to be in the same situation in the future. However, the U.S. Supreme Court ruled in 1969 in Moore v Ogilvie that constitutional ballot access cases are not moot just because the election is over, even if the candidate who filed the lawsuit doesn’t expect to run again in the future. This is made clear in a later U.S. Supreme Court opinion, Richardson v Ramirez, 418 U.S. 24 (1973). At page 35, the opinion says that in Moore v Ogilvie, "the particular candidacy was not apt to be revived."

Montana: the Ninth Circuit will hear Montana Green Party v Stapleton, 20-35340, on May 6. This is a challenge to the unequal distributoin requirement for the petition to qualify new parties. The law requires signatures from at least 34 state house districts. The problem is that the law requires as few as 55 signatures from some districts, and up to 150 signatures in other districts. This gives the voters of some districts greater power than the voters of other districts.

New York: on February 23, a state trial court in Manhattan refused to suspend primary petitions during 2021. The candidate-plaintiffs had argued that the health crisis makes petitioning dangerous. Williams v Cuomo.

Ohio: on February 10, the Sixth Circuit upheld the composition of the Ohio Elections Commission, which consists of three members from each of the two largest parties, plus one independent. Thus a member of a minor party can never serve on the commission. Libertarian Party of Ohio v Wilhem, 20-3585.

Ohio(2): on February 2, initiative proponents asked the U.S. Supreme Court to hear Thompson v DeWine, 20-1072. This is the case over whether Ohio should have eased ballot access for initiatives during 2020 due to covid-19.

Virginia: on February 11, the lawsuit Adeli v Virginia Department of Elections was settled. It had been filed in state court. It allows Democrats seeking a place on the June 2021 primary ballot for legislature to use electronic signatures. Republicans could probably win the same relief if they asked for it.

In the last month, National Popular Vote bills have been introduced in Arizona, Georgia, West Virginia, and Wisconsin, so they are now pending in 15 states. However, the Virginia bills did not pass and the session is now over.

Arkansas: on February 4, the House unanimously passed HB 1338, which increases the independent presidential petition, and the presidential petition for unqualified parties, from 1,000 signature to 5,000. However, the bill has not made any headway since then in the State Senate.

Indiana: HB 1134, which would make ballot access more difficult for qualified minor parties, appears unlikely to pass.

Iowa: on February 23, the Iowa Senate passed SF 413, which increases the petition requirements for independent candidates, and the nominees of unqualified parties. For president, U.S. Senator, and governor, it increases the petition from 1,500 to 3,500 signatures. It also requires 100 signatures from each of 19 counties. That part of the bill would be unconstitutional under Moore v Ogilvie, a 1969 U.S. Supreme Court opinion. The bill raises the U.S. House petitions from 375 signatures to 1,726 signatures, and requires at least 47 signatures from each of half the counties in the district. Similar provisions are also included in HF 590, a bill that has passed the House committee but not yet passed the House.

Montana: on February 4, the House Administration Committee tabled HB 248, which would have moved the non-presidential independent candidate deadline from May to February, and moved the deadline for the new party petition from March to December of the year before the election.

New York: on February 10, the legislature passed A4686. It cuts the number of signatures for independent candidates for district office in half, for 2021 only.

Virginia: on February 22, the legislature passed SB 1148. It moves the non-presidential primary, and the non-presidential independent petition deadline, from the second Tuesday in June to the third Tuesday in June.

South Carolina: on February 18, the House Judiciary Committee passed HB 3262. It requires candidates seeking the nomination of a party that nominates by convention to pay a filing fee. Currently only candidates running in a primary pay fees. All qualified minor parties in the state always nominate by convention.

West Virginia: Delegate Pat McGeehan (R-Chester) has introduced HB 2215. It eases the definition of a qualified political party, from one that polled 1% for Governor, to one that polled 1% for any statewide state race.

Colorado: on February 22, HB 1071 passed the House State, Civic, Military and Veterans Affairs Committee. It requires the Secretary of State to write regulations for guidance to cities that wish to use ranked choice voting to elect their own officers.

Hawaii: on February 17, SB 560 passed the Public Safety, Intergovernmental, and Military Affairs Committee. It requires ranked choice voting for all special elections.

Utah: on February 12, the House passed HB 75. It requires county election officials to administer ranked choice voting for any city that wants to use that system to elect its own officers. The vote was 46-25.

Washington: on February 19, the House Appropriations Committee passed HB 1156. It lets cities use ranked choice voting for their own officers.

New Mexico: on February 8, the Senate Rules Committee killed SB 100, which would have legalized fusion.

South Carolina: this state currently allows fusion, but HB 3261 has been introduced, and it would ban fusion.

~	Dem.	Rep.	Indp, misc	Lib’t.	Green	Consti.	Wk Fam	Reform	other
Alaska	81,345	148,459	340,243	6,973	1,524	658	?	?	20,485
Arizona	1,380,405	1,520,328	1,356,672	38,427	4,226	?	?	?	– –
Arkansas	92,709	118,271	1,622,779	690	91	?	?	?	– –
Calif.	10,170,317	5,334,323	5,501,903	196,108	84,807	211	?	?	759,779
Colorado	1,126,931	1,011,444	1,573,306	42,592	8,615	11,952	?	?	6,402
Conn.	838,292	471,157	917,277	3,270	1,453	11	332	10	32,156
Delaware	362,181	210,180	171,530	2,098	752	282	358	46	11,010
Dt. Col.	403,124	30,146	88,362	2,135	3,885	?	?	?	– –
Florida	5,299,096	5,188,520	3,753,286	39,538	7,335	2,492	?	1,474	165,478
Idaho	145,479	556,906	338,800	11,581	?	4,052	?	?	– –
Iowa	698,870	724,939	681,917	14,349	3,787	0	0	0	– –
Kansas	508,808	871,817	537,698	21,297	0	0	0	0	0
Kentucky	1,660,716	1,573,369	312,618	14,064	1,990	998	?	159	314
Louis’na	1,206,740	992,394	771,996	15,210	2,311	170	0	929	109,785
Maine	405,087	321,935	362,630	?	45,577	?	?	?	– –
Md.	2,284,097	1,021,513	829,200	15,644	6,012	?	?	?	3,263
Mass.	1,534,549	476,480	2,756,915	19,097	3,793	370	78	145	21,482
Nebraska	369,851	605,931	274,317	18,291	?	?	?	?	– –
Nevada	654,749	576,126	464,609	17,554	2,274	82,072	?	?	– –
N. Hamp.	339,269	323,090	424,879	?	?	?	?	?	– –
N. Jersey	2,536,962	1,457,910	2,425,857	19,315	11,488	16,677	?	1,958	30,661
N. M.	611,357	425,651	298,809	12,798	3,641	783	?	?	7,069
N. York	6,189,227	2,744,859	2,755,091	20,298	24,972	?	40,367	2,098	586,160
No. Car.	2,479,131	2,155,244	2,348,775	44,913	3,920	5,285	?	?	– –
Okla.	747,273	1,137,338	372,762	15,947	?	?	?	?	– –
Oregon	1,048,511	753,195	966,261	21,981	8,103	3,823	8,662	?	140,965
Penn.	4,075,927	3,458,241	1,291,761	46,037	10,240	?	?	?	– –
Rhode Is.	346,320	112,334	348,569	?	?	?	?	?	– –
So. Dak.	158,697	279,921	141,237	2,429	?	438	?	?	– –
Utah	254,357	871,036	498,138	19,271	2,449	6,172	?	?	61,248
W. Va.	458,132	455,725	246,872	8,998	2,381	174	?	?	38,300
Wyo.	49,336	203,961	37,340	2,729	0	747	?	?	– –
TOTAL	48,517,845	36,132,743	34,798,906	693,634	245,626	137,367	49,797	6,819	1,994,557
Percent	39.58%	29.48%	28.39%	.57%	.20%	.11%	.04%	.01%	1.63%

Totals October 2020 were: Democratic 47,106,084 (39.67%), Republican 35,041,482 (29.51%), independent & miscellaneous 33,696,700 (28.38%), Libertarian 652,261 (.55%), Green 240,222 (.20%), Constitution 129,556 (.11%), Working Families 49,758 (.04%), Reform 9,004 (.01%), other parties 1,814,973 (1.53%).

Totals October 2016 were: Democratic 45,690,825 (40.60%), Republican 33,052,332 (29.37%), independent & miscellaneous 31,200,104 (27.72%), Libertarian 497,535 (.44%), Green 256,560 (.23%), Constitution 92,483 (.08%), Reform 5,294 (.00+%), Working Families 61,517 (.05%), other parties 1,662,329 (1.50%).

Totals October 2012 were: Dem. 43,512,746 (41.85%), Rep. 31,298,863 (30.10%), indp. & misc. 26,808,810 (25.79%), Libertarian 330,811 (.32%), Green 250,682 (.24%), Constitution 77,918 (.07%), Reform 22,880 (.02%), Americans Elect 6,408 (.01%), other parties 1,659,537 (1.60%).

Totals October 2008 were: Dem. 43,933,901 (43.62%), Rep. 30,944,590 (30.72%), indp. & misc. 24,157,259 (23.98%), AIP/Constitution 438,222 (.44%), Green 255,019 (.25%), Libertarian 240,328 (.24%), Reform 32,961 (.03%), other parties 675,980 (.67%).

Totals October 2004 were: Dem. 37,301,951 (42.19%), Rep. 28,988,593 (32.79%), indp. & misc. 20,471,250 (23.15%), Constitution 320,019 (.36%), Green 298,701 (.34%), Libertarian 235,521 (.27%), Reform 63,729 (.07%), Natural Law 39,670 (.04%), other parties 695,639 (.79%).

Political scientists Boris Shor and Nolan McCarty have released new data on polarization in state legislatures, something they have been doing for a decade, using hundreds of thousands of data points. They again find that the California top-two system does not reduce polarization in the legislature.

The People’s Party has asked the California Secretary of State to tally its registered members. This is the first step toward party status. If approximately 68,000 people join the party, it will be qualified.

The Virginia Constitution Party has determined to try to get on the ballot in 2021 for Governor, Lieutenant Governor, Attorney General, and many legislative races. The party has never before been on the ballot for any statewide race except president. Only 2,000 signatures for each statewide petition are needed.

Last month, the Kansas Secretary of State released write-in totals for November 2020 declared write-in presidential candidates: Howie Hawkins (Green) 669; Brian Carroll (American Solidarity) 579; Kanye West 332; Jade Simmons 48; Mark Charles 29; Tom Hoefling 14; Ajay Sood 4; Brock Pierce 4; Jason Edwards 2; Dario Hunter 1; Kasey Wells 1.

Maine has become the latest state to decide that it will not bother to compile the number of write-in votes received by write-in presidential candidates. Other states that formerly tallied them, but no longer do, are Massachusetts, New Mexico, North Dakota, Oregon, and Virginia.

During February, two state legislators changed their registration from Republican to independent. They are Arkansas State Senator Jim Hendren and New Mexico Representative Phelps Anderson.

The Conservative Party is now ballot-qualified in Delaware, by virtue of a registration drive.