SIXTH CIRCUIT STRIKES DOWN MICHIGAN’S INDEPENDENT STATEWIDE PETITION LAW

On March 29, the Sixth Circuit issued an opinion in Graveline v Benson, 20-1337. It invalidates Michigan’s petition requirement for statewide independent candidates, which is 30,000 signatures due July 19 of an election year.

The basis for the decision is partly that, except for two independent presidential petitions, no one has ever successfully completed this petition. Another basis for the decision is the deadline, which requires independent candidates to have completed the petition before the major parties nominate.

The vote is 2-1. Judge Karen Nelson Moore, a Clinton appointee, wrote the decision. It is also signed by Judge Ronald Gilman (Clinton). The dissenter is Judge Richard Griffin, a Bush Jr. appointee. It is somewhat likely that Michigan will ask for a rehearing. Assuming the decision stands, it will be useful as a precedent against the Tennessee party petition. Tennessee is also in the Sixth Circuit.

On March 23, the Montana House Administration Committee passed SB 350, which eases the procedure for unqualified parties to petition for party status. The bill had already passed the State Senate. It is very likely to become law, because the Secretary of State proposed the bill, and the Republican members of the legislature seem solidly in favor of the bill. The bill does not lower the 5,000-signature requirement, nor does it ease the unequal distribution requirement. But it does correct some other problems that caused the 2018 and 2020 Green Party petitions to fail. Governor Greg Gianforte, a Republican, is expected to sign the bill.

The Green Party tried to complete the petition in 2018, but the Democratic Party challenged the Secretary of State’s determination that the petition had enough valid signatures. In 2020, the Green Party wanted to be on the ballot again, but it didn’t believe it could succeed. But Republican activists completed the petition for them. However, the 2020 petition also failed, even though everyone agreed that it had enough valid signatures, due to another Democratic Party court challenge.

The bill makes these changes:

(1) it says that a signature is valid, even if the signer used his or her middle name on the voter registration form but left it off the petition (or vice versa). It says, "The signature may be counted so long as the signature, taken as a whole, bears sufficient similarity to the signature on the registration form as to provide reasonable certainty of its authenticity."

(2) the bill says that a voter who signs the petition, and then wishes to withdraw the signature, must do so by the March petition deadline. This is important because in 2020, the Democratic Party sent activists to knock on the doors of voters who had signed the Green Party petition and asked them to withdraw their signatures.

This activity was done in the three months after the petition deadline, so although it was impossible for the Green Party petition to add any new signatures during April, May, and June, the number of signatures they had submitted dwindled. A Montana state trial court had upheld the timing of such withdrawals, in the absence of any clear deadline in the law for such withdrawals.

(3) the bill says "any elector may present a petition to request that a political party may qualify." The old law says that "a party" may present the petition. The State Supreme Court had construed the old law to mean that the Green Party 2020 petition was invalid because it had been circulated and submitted by people who were not "real" Greens. Montana Democratic Party v State, DA20-0396.

Montana voter registration forms don’t ask the applicant to choose a party, so there is no public record of any person’s party membership, unless he or she announces it publicly. Furthermore, the Montana law on the party petition procedure has never required the party to place the names of its officers on the petition, or to file any legal form reserving their party name. When the Montana Supreme Court removed the Green Party, Montana Democratic Party v State, DA20-0396, its decision was arbitrary. Neither side had presented any arguments about this issue, and the lower court had not even mentioned it. Thus there was no evidence in the lawsuit to establish the motivations of the petitioners, or their partisan feelings.

The decision was based on the Court’s belief about the motivation of the circulators.

But petitions should never be invalidated just because an election official, or a court, doesn’t like the motivation of the people circulating the petition. If enough registered voters sign the petition, it should be considered valid, regardless of the motives of the circulators.

SB 350 passed the Senate on a party-line basis, with all Republicans voting "yes" and all Democrats voting "no."

On March 8, Iowa Governor Kim Reynolds signed SF 413. It increases the number of signatures for independent candidates, and the nominees of unqualified parties. Iowa now has the most severe ballot access laws it has ever had. Before 2019, Iowa ballot access was easy. Iowa is the only state in the nation in which no minor party or independent presidential candidate, who received at least 25,000 votes nationwide, had not been on the ballot (except that in 1948, Strom Thurmond did not qualify in Iowa, because he had no interest in being on in non-southern states).

The statewide petitions rise from 1,500 signatures to 3,500. The US House requirement rises from 375 signatures to a minimum of 1,726. Furthermore, for statewide petitions, there is a county distribution requirement of 100 signatures from each of 19 counties. For U.S. House petitions, 47 signatures are required from each of half the counties in the district.

No other state has ever had a county distribution requirement for U.S. House petitions. The effect of that distribution requirement is to make ballot access in rural districts more difficult than in other districts. For example, in 2020, if the law had been in effect, a candidate in the Fourth district, which has 39 counties, would have needed to collect 1,833 signatures from particular counties. By contrast, candidates in the Third would have only needed to collect 752 signatures from particular counties.

The bill was passed on a party-line vote, with Republicans in favor and Democrats opposed. The motive for the bill is Republican unhappiness with the results of the 2020 election for U.S. House, Third district: Democratic 219,205; Republican 212,997; Libertarian 15,361. None of the other districts had any minor party or independent candidates on the ballot.

The distribution requirement is unconstitutional under two U.S. Supreme Court decisions, Moore v Ogilvie (Illinois, 1969) and Rockefeller v Socialist Workers Party (a summary affirmance from New York in 1970). Lower courts have struck down county distribution laws in Hawaii, Idaho, Illinois’s revised requirement, Massachusetts, Michigan, Nebraska, Nevada, Ohio, Pennsylvania, Rhode Island, and Wyoming.

In 2019, the Iowa legislature moved the petition deadline for non-presidential petitions from August to March, and the Libertarian Party is suing over that. That case is in U.S. District Court.

The South Carolina legislature has almost passed HB 3262. It passed the House on February 25, and the Senate Judiciary Committee on March 24. It imposes filing fees on candidates who are seeking the nomination of a party that nominates by convention. In South Carolina, the Republican and Democratic Parties always choose to use primaries, and smaller qualified parties choose to use conventions. Therefore, under the old law, only Republicans and Democrats pay candidate fees, because only primary candidates pay them.

The filing fees are 1% of the salary of the office being sought, for the duration of the term. Therefore, the U.S. Senate filing fee is $10,440, because the annual salary for a member of Congress is $174,000, and a U.S. Senate term is 6 years. The fee for a U.S. House candidate is $3,480.

The U.S. Supreme Court ruled in 1972 and again in 1974 that filing fees are unconstitutional, unless they are needed for the compelling reason of preventing ballots from being too crowded. Forcing convention candidates to pay filing fees makes no sense, because there is no ballot to be crowded when a party uses conventions instead of primaries.

Most states that use filing fees provide for petitions in lieu of a fee, at least for poor candidates. South Carolina does not. In 1974 a 3-judge U.S. District Court ruled that South Carolina must have procedures for poor candidates. In the same case, in 1975, the judges approved a consent decree, which said that poor candidates can get on a primary ballot if they submit a petition signed by 5% of the number of registered voters who are eligible to vote in the primary. Culbertson v Fowler, cv 72-645.

The decision is not reported, and the statute has never been amended to incorporate the consent decree, so probably many South Carolina legislators don’t know about it.

The December 3, 1974 court order said, "Nor can filing fees be warrented as a revenue measure for the purpose of providing funds to defray election expenses." Yet, ironically, the "Statement of Estimated Fiscal Impact" attached to the bill says, "Any revenue increase will be used to offset the cost of primary elections." The fiscal note estimates that the state will gain revenue of $200,000 per election year.

If one tries to use the consent decree language to cover conventions, then presumably a poor candidate would only need to present a petition of 5% of the number of people attending the convention, which would probably be easy to do.

Another constitutional problem for the bill is that twice, U.S. District Courts have told South Carolina that no tasks can be imposed on newly-qualifying parties before the May petition deadline. The bill says filing fees should be paid in March, but that timing runs afoul of the two decisions, both of which concerned whether new parties most hold party meetings in March and April, before they submitted their petitions for party status. Natural Law Party v DePass, 3:96-2301, and Working Families Party v Bowers, 3:06-2125.

On March 25, Georgia SB 202 was signed. It is an election law bill that received huge publicity because it makes it difficult for voters to vote. Ironically, the bill contains a provision that will make it easier for the Libertarian Party to win its pending ballot access lawsuit.

Georgia provides that general elections for partisan office require a run-off if no one gets 50%. Under the old law, the run-off was nine weeks after the November election, which means early January. The long lag between the two rounds was because of a federal law that requires states to mail absentee ballots to overseas voters at least 45 days before the election. But SB 202 changes the run-off to only four weeks after the November election. This is accomplished by providing that overseas voters will use ranked choice voting, so it isn’t necessary to send them a second ballot for a run-off.

The Libertarian Party has been suing Georgia since 2017, over the petition requirement for minor party and independent candidates for U.S. House. The petition requirement is so difficult, it has never been used by a minor party since it was passed in 1943, and it hasn’t been used by an independent candidate since 1964. It requires about 25,000 signatures.

Georgia defends its law by saying it wants to avoid unnecessary run-off elections for U.S. House, because in the past, the run-offs have been so late that by the time someone wins the run-off, that session of Congress has started. Obviously when there is only a Republican and a Democrat on the November ballot the state doesn’t need to worry that someone won’t get 50%, barring an extremely ususual strong write-in campaign.

But under SB 202, the run-offs will be in early December, and the state thus loses its strongest argument.

On March 8, Arkansas Governor Asa Hutchinson signed HB 1338, which increases the petition for independent presidential candidates, and for presidential status for unqualified parties, from 1,000 signatures to 5,000 signatures.

On March 8, the U.S. Supreme Court issued an opinion in Uzuegbunam v Preczewski, 19-968. This is not an election law case, but it could be useful to future ballot access cases. The Court said that if a plaintiff sues over a First Amendment violation, and asks for nominal damages, and then the governmental body that had imposed the First Amendment restriction removes that restriction, the case is still not moot, and can get a decision on the merits.

In Uzuegbunam, a college had set up very restrictive rules for where students could speak outdoors on campus. The plaintiff, who wanted to preach, sued, and the college then gave in and allowed speech all across the campus. The U.S. District Court said the case was therefore moot, and refused to rule on whether the original speech restriction had been unconstitutional or not. The student wanted to get a ruling that it was unconstitutional, just to make sure that the college didn’t later change its mind and restore the restrictions. The Eleventh Circuit agreed with the U.S. District Court that the case was moot. But the U.S. Supreme Court said the case was not moot, because the plaintiff had asked for nominal damages (such as $1).

This ruling would have been useful if it had been made earlier, before a 2019 Florida ballot access lawsuit had been filed. In 2011 the Florida legislature made ballot access much worse for president.

The law said that a ballot-qualified party could not be on for president unless (1) it was recognized by the Federal Election Commission as a national party, or (2) it submits a petition of over 100,000 signatures.

In late 2011, the Secretary of State ruled that the new law could not be enforced because he didn’t know which parties were recognized by the FEC as national committees. But then in September 2016, the Secretary of State abruptly changed his mind, and said he would enforce it. One of the victims of the 2016 switch was the Party for Socialism and Liberation.

Then, in 2019, the Party for Socialism & Liberation sued, fearing that the law would hurt it again. But then the Secretary of State put the party on, and the party felt that it had to drop the lawsuit, because it was moot. But now, under Uzuegbunam, assuming the party had asked for nominal damages, it such an event happens in the future, the lawsuit won’t be considered moot and the matter could be settled.

On March 22, the U.S. Supreme Court refused to hear Level the Playing Field v FEC, 20-649, on the subject of access to general election presidential debates.

1912	Socialist, 358	Progressive, 239	Prohibition, 210
1914	Socialist, 338	Progressive, 285	Prohibition, 175
1916	Socialist, 330	Prohibition, 170	Progressive, 43
1918	Socialist, 218	Prohibition, 63	Socialist Labor, 11
1920	Socialist, 225	Farmer-Labor, 54	Prohibition, 39
1922	Socialist, 168	Farmer-Labor, 45	Prohibition, 33
1924	Socialist, 123	Farmer-Labor, 27	Communist, 24
1926	Socialist, 98	Prohibition, 19	Farmer-Labor, 19
1928	Socialist, 89	Farmer-Labor, 26	Communist, 25
1930	Socialist, 83	Communist, 58	Farmer-Labor, 16
1932	Socialist, 191	Communist, 118	Prohibition, 35
1934	Socialist, 217	Communist, 122	Prohibition, 45
1936	Socialist, 156	Communist, 78	Union, 60
1938	Socialist, 73	Prohibition, 31	Union, 27
1940	Prohibition, 52	Communist, 50	Socialist, 34
1942	Prohibition, 27	Socialist, 24	Communist, 15
1944	Prohibition, 51	Socialist, 36	Socialist Labor, 8
1946	Prohibition, 44	Socialist, 24	American Labor, 13
1948	Progressive, 113	Socialist, 46	Prohibition, 43
1950	Progressive, 68	Prohibition, 43	Liberal, 13
1952	Progressive, 58	Prohibition, 53	Liberal, 13
1954	Progressive, 18	Prohibition, 17	Socialist Labor, 15
1956	Prohibition, 20	Liberal, 7	Socialist Labor, 5
1958	Prohibition, 23	Socialist Labor, 15	Liberal, 10
1960	Prohibition, 26	Socialist Labor, 17	Liberal, 14
1962	Liberal, 13	Socialist Labor, 8	Prohibition, 3
1964	Liberal, 11	Conservative, 10	Socialist Workers, 6
1966	Conservative, 18	Liberal, 11	Socialist Labor, 6
1968	American Indp., 52	Conservative, 24	Liberal, 17
1970	American Indp., 87	Conservative, 18	Peace & Freedom, 11
1972	American Indp., 55	Socialist Workers, 22	Liberal, 18
1974	American Indp., 51	Socialist Workers, 28	U.S. Labor, 25
1976	U.S. Labor, 58	American, 49	Libertarian, 41
1978	Right to Life, 22	American Indp., 21	(tie) Soc Wkr, US Labor each 16
1980	Libertarian, 114	Socialist Workers, 18	Conservative, 16
1982	Libertarian, 157	Socialist Workers, 21	Citizens, 16
1984	Libertarian, 97	Socialist Workers, 21	Peace & Freedom, 10
1986	Libertarian, 45	Peace & Freedom, 16	Conservative, 13
1988	Libertarian, 91	Peace & Freedom, 16	Right to Life, 11
1990	Libertarian, 47	Populist, 16	New Alliance, 15
1992	Libertarian, 126	Natural Law, 38	Peace & Freedom, 30
1994	Libertarian, 82	Natural Law, 32	Right to Life, 13
1996	Libertarian, 170	Natural Law, 155	Reform, 36
1998	Libertarian, 156	Natural Law, 66	Reform, 34
2000	Libertarian, 255	Natural Law, 98	Green, 46
2002	Libertarian, 218	Green, 58	Constitution, 19
2004	Libertarian, 144	Green, 47	Constitution, 44
2006	Libertarian, 114	Green, 45	Constitution, 28
2008	Libertarian, 127	Green, 58	Constitution, 41
2010	Libertarian, 161	Green, 58	Constitution, 48
2012	Libertarian, 137	Green, 59	Constitution, 22
2014	Libertarian, 122	Green, 43	Constitution, 13
2016	Libertarian, 122	Green, 54	Constitution, 15
2018	Libertarian, 116	Green, 35	Constitution, 15
2020	Libertarian, 119	Green, 20	Constitution, 13

State	Requirements		Signatures Collected or Registrations Obtained
	Full Party	Cand.	Lib’t	Green	Consti	Wk Fam	Alliance	Solidarity
Ala.	51,588	51,588	*11,000	0	0	0	0	0
Alaska	(reg) 10,821	pay fee	*6,735	*1,459	*649	0	*19	0
Ariz.	31,686	(est) #40,670	already on	*1,000	0	0	0	0
Ark.	10,000	10,000	0	0	0	0	0	0
Calif.	(es) (reg) 72,395	65 + fee	already on	already on	211	0	0	0
Colo.	(reg) 1,000	#8,000	already on	already on	already on	0	0	0
Conn.	no procedure	#7,500	already on	already on	can’t start	already on	already on	can’t start
Del.	(est.) (reg) 750	(est.) 7,500	already on	*already on	*280	*359	*656	*20
D.C.	no procedure	#3,000	already on	already on	can’t start	can’t start	can’t start	can’t start
Florida	0	pay fee	already on	already on	already on	0	already on	0
Georgia	72,336	#64,354	already on	*0	*0	*0	*0	0
Hawaii	833	25	already on	already on	already on	0	0	0
Idaho	17,348	1,000	already on	can’t start	already on	can’t start	can’t start	can’t start
Illinois	no procedure	#25,000	can’t start	can’t start	can’t start	can’t start	can’t start	can’t start
Indiana	no procedure	#44,935	already on	0	0	0	0	0
Iowa	no procedure	#1,500	0	0	0	0	0	0
Kansas	21,102	5,000	already on	0	0	0	0	0
Ky.	no procedure	#5,000	can’t start	can’t start	can’t start	can’t start	can’t start	can’t start
La.	(reg) 1,000	#pay fee	already on	already on	267	0	0	*20
Maine	in court	#4,000	in court	already on	0	0	0	0
Md.	10,000	10,000	already on	already on	0	0	0	0
Mass.	(est) (reg) 45,500	#10,000	(rg) 19,097	(reg) 3,793	(reg) *370	*78	0	0
Mich.	42,506	30,000	already on	already on	already on	0	0	0
Minn.	(est) 165,000	#2,000	0	0	0	0	0	0
Miss.	be organized	1,000	already on	already on	already on	0	already on	already on
Mo.	10,000	10,000	already on	*200	already on	0	0	0
Mont.	5,000	#16,959	already on	*0	0	0	0	0
Nebr.	6,980	4,000	already on	0	0	0	0	0
Nev.	13,557	250	already on	(rg) *2,274	already on	0	0	0
N. Hamp.	23,798	#3,000	0	0	0	0	0	0
N.J.	no procedure	#800	0	0	0	0	0	0
N. M.	3,483	10,260	already on	0	0	*already on	0	0
N.Y.	no procedure	#45,000	in court	in court	can’t start	already on	can’t start	can’t start
No. Car.	13,757	(est) 110,000	already on	*200	*250	0	0	0
No. Dak.	7,000	1,000	0	0	0	0	0	0
Ohio	57,630	5,000	0	0	0	0	0	0
Okla.	35,592	pay fee	already on	0	0	0	0	0
Oregon	27,960	23,737	already on	already on	already on	already on	0	0
Penn.	no procedure	5,000	can’t start	can’t start	can’t start	can’t start	can’t start	can’t start
R.I.	18,758	#1,000	0	0	0	0	0	0
So. Car.	10,000	10,000	already on	already on	already on	already on	already on	0
So. Dak.	3,393	3,393	already on	0	0	0	0	0
Tenn.	56,083	25	0	0	0	0	0	0
Texas	83,435	83,435	already on	already on	in court	can’t start	can’t start	can’t start
Utah	2,000	#1,000	already on	0	already on	0	0	0
Vermont	be organized	#500	already on	0	0	already on	0	0
Virginia	no procedure	#10,000	can’t start	can’t start	can’t start	can’t start	0	0
Wash.	no procedure	#pay fee	can’t start	can’t start	can’t start	can’t start	can’t start	can’t start
West Va.	no procedure	#7,610	already on	already on	0	0	0	0
Wisc.	10,000	#2,000	already on	can’t start	already on	can’t start	can’t start	can’t start
Wyo.	5,418	5,418	already on	can’t start	already on	can’t start	can’t start	can’t start
States On			32	16*	13*	6*	4	1

#partisan label permitted.
"WK FAM" = Working Families.
SOLIDARITY = American Solidarity.
(reg.) = registered members.
* = change since December 1, 2020 chart.

Voters have far more choices in general elections for president than for U.S. House. In every presidential election since 1868 (except for 1956, 1960, and 1964), there were always at least three candidates who were on the ballot in enough states to theoretically win (or, for the period before there were government ballots, who had enough presidential elector candidates to theoretically win). Sometimes there have been as many as seven such candidates, as in 1976, 1980, and 2000.

But for U.S. House elections, there is virtually never any party that could theoretically win a majority in the House. Except for the Libertarian Party in 2000 and 2002, one must go all the way back to 1920 to find an instance in which as many as three parties appeared on the ballot in a majority of districts for U.S. House. There have been 435 seats in the U.S. House since 1912 (except there were a few more briefly after Alaska and Hawaii were admitted), so a party needs to be on in 218 to have a theoretical chance of winning a majority of seats.

The ballot access laws are more severe for U.S. House than they are for president. This is a fact that never makes its way into mainstream media. The U.S. Supreme Court has never heard a ballot access case on the number of signatures for U.S. House. This is odd, because in U.S. Term Limits v Thornton the Court said states can’t prevent people from running for Congress who meet the constitutional qualifications listed in Article One of the Constitution. Yet difficult petition requirements for U.S. House function as such barriers.

See the chart on page four to see how many U.S. House candidates the leading three minor parties have run, in each election 1912 through 2020. The chart does not include minor party nominees who were also major party nominees, unless the fusion candidate was a minor party member.

California: State Senate 30, March 2: 61,740 for Democrats (87.48%); 6,023 for Republicans (8.53%); Peace & Freedom 1,570 (2.22%); independent 1,244 (1.76%). When this seat was last filled, in 2018, only one candidate, a Democrat, ran.

Louisiana: U.S. House, 2^nd district, March 20: Democrats 77,994 (82.47%); Republicans 15,558 (16.45%); Independent Party 598 (.63%); Libertarian 323 (.34%); independent 94 (.10%). When this seat was up in November 2020, the percentages were: Democrats 74.24%; Republicans 19.92%; Independent Party 5.84%.

Louisiana: U.S. House, 5^th district, March 20: Republicans 74,723 (72.12%); Democrats 28,255 (27.27%); Independent Party 236 (.23%); independent 402 (.39%). When this seat was up in November 2020, the percentages were: Republicans 57.65%; Democrats 42.35%.

The Clerk of the U.S. House of Representatives has electronically published Statistics of the Presidential and Congressional Election of November 3, 2020. It will be in book form later, and will be free to anyone who asks for it. Phone 202-225-1908. The Clerk has been publishing such books starting in 1920. The book always has a chart at the back, showing the national vote for each party for U.S. House and U.S. Senate.

The Socialist Workers Party is petitioning to be on the ballot in New Jersey in November 2021, for Governor. If the petition succeeds, it will be the first time the SWP has been on for this office since 2005.