U.S. DISTRICT COURT STRIKES DOWN GEORGIA’S 5% PETITION FOR U.S. HOUSE

On March 29, U.S. District Court Judge Leigh May, an Obama appointee, issued an opinion in Cowen v Raffensperger, n.d. 1:17cv-4660. It invalidates Georgia’s petition for independent candidates, and the nominees of minor parties, for U.S. House. That law, which requires the signatures of 5% of the registered voters in the district, is so severe that it has not been used since 1964. Back in 1964, the deadline was in October, the signatures were not checked, no filing fee was needed, the state had far fewer registered voters, and boundaries of U.S. House districts followed county lines, so it was easier to petition.

The basis for the decision is mainly that the state has no interest in making it that difficult. The decision cites many instances when independent and minor party candidates tried very hard to complete these petitions, but failed.

Judge May asked both sides to suggest an interim requirement, until the legislature can write a new law (the legislature has adjourned, but it may come back in a special session in a few months). The plaintiffs said that if the judge wants to impose an interim solution, she should order either payment of the filing fee (which is approximately $6,000) or 500 signatures. The state has not responded. The original deadline was April 23, but the state asked for an extension, which was granted; the new deadline is April 30.

This case was difficult to win, because in the 1971 the U.S. Supreme Court upheld Georgia’s 5% petitions for minor party and independent candidaes in Jenness v Fortson, 403 U.S. 431. There was no evidence in that case about the difficulty of petitioning.

The Socialist Workers Party, which filed that case, simply argued that because no one needed a petition to get on a primary ballot, therefore it is unconstitutional to require a petition for general election candidates. The Court rejected that argument. Unfortunately, despite the lack of any evidence in that case, lower courts then interpreted Jenness to mean that 5% petitions are always constitutional. Over the years that tendency has eroded, and there are now federal court decisions striking down requirements less than 5% on First and Fourteenth Amendment grounds in eleven states: Arkansas, Colorado, Florida, Georgia, Idaho, Illinois, Iowa, Michigan, North Carolina, North Dakota, and Pennsylvania. Also in 1966 a federal court struck down Mississippi’s requirement of 10,000 signatures because Mississippi had not pre-cleared that change with the Voting Rights Section of the U.S. Justice Department.

On April 12, the Montana legislature passed SB 350, which eases the rules for new party petitions:

(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). (2) it says that a voter who signs the petition, and then wishes to withdraw the signature, must do so by the March petition deadline; (3) it 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.

Every Republican in both houses voted "yes"; and every Democrat voted "no."

On April 20, U.S. District Court Judge Peter Sheridan, a Bush Jr. appointee, struck down the New Jersey ban on out-of-state circulators for primary petitions. Arsenault v Way, 3:16cv-1854.

The plaintiffs include Rocky De La Fuente, who was running for president in the 2016 Democratic primaries. He needed 1,000 signatures of registered Democrats or registered independents to get on the ballot, and he did not succeed because his circulators were not New Jersey residents. He sued, but the U.S. District Court upheld the restriction. He appealed to the Third Circuit, which remanded the case back to the lower court and said that the law could only survive if the state showed it had a compelling need for the restriction. The state then said that the ban was needed to protect freedom of association for the Democratic and Republican Parties, because supposedly those parties didn’t want non-members of their state parties petitioning. But the parties themselves never submitted any statements to the court, so that was not a convincing argument.

States that still ban out-of-state circulators (for some types of petition) are Maine, Montana, New York, North Dakota, and South Dakota. Lawsuits are pending in Maine and Montana. In New York, the Libertarian Party had won a case in U.S. District Court that the ban is unconstitutional, but then it became a qualified party and the Second Circuit said the case is moot. But then the legislature removed the party from the ballot, so the lawsuit can be revived.

The April 1 B.A.N reported that the Sixth Circuit had agreed with the lower court, and that Michigan’s 30,000-signature requirement for statewide independents is unconstitutional. Since then, the time for Michigan to request a rehearing has passed, so the decision, Graveline v Benson, stands. In Michigan, 30,000 is less than 1% of the last gubernatorial vote.

The Sixth Circuit includes Tennessee, where the petition for a new party, 2.5% of the last gubernatorial vote (56,083 signatures), has not been met by any party since 1968.

The basis for the Sixth Circuit decision in Graveline is that no one had used the Michigan procedure since it was passed in 1988, except for two independent presidential candidates. Because the Sixth Circuit now holds that the validity of a ballot access law should be based largely on how many times it is used, it should be possible to win a new lawsuit against the Tennessee party petition.

A U.S. District Court decision in 2016 upheld the Tennessee party petition, but that decision, Green Party of Tennessee v Hargett, m.d., 3:11cv-692, did not mention that no one had successfully used the petition since 1968. Also it is not reported, so it should be possible for a new lawsuit to have a different outcome.

Arizona: it has been almost eight months since the State Supreme Court removed Kanye West from the November ballot as an independent candidate, and said it would explain why later. The Court still hasn’t explained. West v Clayton, cv-20-0249. West’s Arizona petition easily collected more signatures than any other 2020 petition for a minor party or independent candidate. It had approximately 70,000 signatures.

Florida: on April 15, a candidate for school board in Escambia County filed a federal lawsuit against the state law that makes it illegal for a candidate for non-partisan office to mention his or her party registration in any campaign ad. Hetherington v Lee, n.d., 3:21cv-671.

Illinois: on April 21, the State Supreme Court construed the law to mean that a petitioner who circulates for a primary candidate cannot then circulate another petition for an independent candidate that same year, even if the offices are different. Elam v Municipal Officers Electoral Board for Riverdale, 2021-IL-127080.

New Mexico: on April 15, a state trial court rejected a challenge to the ballot position of the Libertarian Party nominee in the June 1, 2021 special U.S. House election. The challenger said the party is not a qualified major party, and said it must have polled 5% for President in 2020 to be a major party. The Secretary of State says the party is qualified because section 1-7-7 defines a qualified major party as a party "any of whose candidates received 5% of the total number of votes cast at the last preceding election for governor or president." The Libertarian Party is 2020 polled over 5% of the total presidential vote for its nominee for a statewide partisan judicial race. Grider v Toulouse Oliver. The challenger has appealed to the State Supreme Court, S-1-SC-38784.

Ohio: on April 19, the U.S. Supreme Court refused to hear Thompson v DeWine, 20-1072. The case had been filed by initiative proponents to get relief during the covid health crisis. The U.S. District Court had granted relief, but the Sixth Circuit had reversed.

Pennsylvania: on April 8, the State Supreme Court ruled that a petition signature is invalid if the address doesn’t match the address at which the voter is registered. In re Nom. Petition of Major, 15 EAP 2021.

The Politics Industry: How Political Innovation Can Break Partisan Gridlock and Save Our Democracy, by Katherine M. Gehl and Michael E. Porter. 246 pages, hardcover. Harvard Business Review Press. $30.

Katherine Gehl, who lives in Wisconsin, is the former president and CEO of Gehl Foods. Michael E. Porter is the Bishop William Lawrence University Professor at Harvard Business School. He writes in the preface, "American politics was literally the last topic I ever thought I’d tackle…People often assume that I am the parent of these ideas. I am not. Katherine is the originator of both Politics Industry Theory and the strategy for political innovation we prescribe in this book."

The book’s chief purpose is to propose that states should implement top-five systems. A top-five system is one in which parties no longer have nominees. Instead, all candidates run on a single primary ballot, and then the five candidates with the most votes are the only ones who compete in the general election. The general election uses Ranked Choice Voting, but the primary does not. The authors prefer the term "final-five", but they seem to acknowledge that "top-five" is now the dominant term. Gehl has persuaded some Wisconsin state legislators to introduce a bill for top-five. SB 250 was introduced on March 25, and so far has made no headway.

The authors also use the book to argue for reform of congressional and legislative internal rules, and in favor of ranked choice voting.

The authors are right that the United States’ election system is flawed. The authors want more competition and seem friendly to independent candidates and minor parties. But, unfortunately, their solution would only make the duopoly even stronger than it is now.

In November 2020, there were 35 U.S. Senate elections and 11 gubernatorial elections. In 83% of those elections, there was at least one minor party or independent candidate on the general election ballot. But if top-five had been in existence in every state, chances are there would have been no minor party or independent candidates for either of those offices.

This is clear from the experience of the top-two systems in California and Washington. During the years in which top-two was in place in those states, there is no example of any minor party candidate for Governor or U.S. Senator ever placing in the top five. This chart shows the leading minor party candidate vote-getter, and his or her rank, for all such elections:

Wa Gov 2008	Green	6th
Wa Sen 2010	Reform	12th
Ca Sen 2012	Libertarian	9th
Wa Sen 2012	Reform	8th
Wa Gov 2012	no attempt	– –
Ca Gov 2014	Green	6th
Ca Sen 2016	Libertarian	10th
Wa Sen 2016	Libertarian	6th
Wa Gov 2016	Soc. Wkrs.	9th
Cal Gov 2018	Peace & Fr	12th
Cal Sen 2018	Libertarian	15th
Wa Sen 2018	Libertarian	12th
Wa Gov 2020	Green	7th

The reason minor party candidates for Governor and U.S. Senator do so poorly in top-two primaries is that there are always many Democrats and Republicans running, and voters in primary season are paying more attention to them. The press won’t cover minor party candidates because they assume they won’t place in the top two.

The authors also praise Nebraska’s nonpartisan elections for legislature, and praise the Washington blanket primary that was in use 1935-2002.

They write, "Party primaries are the centerpiece of elections machinery. They ensure that the public interest and a person’s electability do not intersect…Party primaries are a huge problem for the country."

"In party primaries a small group of more-ideological voters become guardians at the gate…the more ideologically extreme of a voter you are, the more likely you are to think that you’re able to influence government, according to recent research. Party primaries can have the effect of screening out problem-solving candidates, while rewarding more extreme candidates."

The book’s introduction puts it most graphically: "Imagine you are a member of the U.S. House of Representatives…You decide to put country over party. You take the risk and publicly endorse the bill’s artful compromise solution…You are in trouble…You’re about to be primaried. In the next party primary, you can expect an uberleft challenger if you’re a Democrat and a hard-right opponent if you’re a Republican."

This argument sounds persuasive, although the bulk of political science research does not agree with it. For a list of scholarly papers that say the type of primary does not determine who gets elected or how they behave in office, see the September 1, 2013 B.A.N., front page story, which has reference to five papers. Also see the extensive research on polarization in state legislatures by Boris Shor and others, which continues to find, year after year, that California and Washington have legislatures that are far more polarized than the legislatures of other states.

Also see the books The Myth of the Independent Voter (by six political scientists, lead author Bruce E. Keith) and Independent Politics, by political scientists Samara Klar and Yanna Krupnikov. They debunk the idea that independents are moderates.

But even assuming that Gehl and Porter are correct, and that partisan primaries are the problem, one wonders why the book assumes that the only substitute for partisan primaries is a top-five system? The book doesn’t cover other ideas:

Nomination by party meetings: the entire democratic world, outside the United States, uses party meetings to choose nominees. The United States used that system in the 19^th century. Even Gehl and Porter acknowledge that major party leaders are motivated to help their incumbents get re-elected, so increasing the power of the party organization, by giving them the power to nominate, ought to help those legislators who have decided to support compromise bills.

Louisiana system: Louisiana is the pioneer state for abolishing party nominees; it has 45 years of experience. In Louisiana, there are no primaries (except presidential primaries). There are merely general elections, in which no party or candidate is excluded. If no one gets 50%, there is a general election run-off shortly after the general election itself. Astounding, the book does not even mention Louisiana. There is no "Louisiana" reference in the index.

Blanket primaries: the book praises the blanket primary, which is a system in which all candidates run on a single primary ballot, and then the top vote-getter from each party qualifies for the general election. In some blanket primaries, independent candidates petition separately to get on the November ballot and do not participate in the primary. Yet the book does not advocate for blanket primaries. Perhaps the authors felt that blanket primaries are unconstitutional, but they are only unconstitutional if they are mandatory. They are constitutional if the law lets each party decide for itself whether to participate in the blanket primary. Parties that opt out of the blanket primary can nominate by party meeting.

Multi-member proportional representation: bills for multi-member proportional representation have repeatedly been introduced in the last few decades, and most serious scholars of election law favor this idea. But the book doesn’t mention it. Congressman Don Beyer (D-Virginia) will soon introduce this.

California

One gets the sense that the authors prefer top-five because they believe the California top-two system has been a cure for California’s problems. They note that a top-two system gives very little choice in the general election, so they decided to make a "good" system even better by switching from top-two to top-five.

There is no doubt the authors think that top-two has helped California. On page 147 they write, "The State of California was in crisis throughout the 2000’s. Government was failing to solve the state’s mounting problems. Unemployment was rampant, infrastructure was crumbling, deficits ballooned, the state’s bonds were rated the worst in the nation, and the state was plagued with power outages. All the while, the legislature regularly failed to perform the basic task of reach a budget deal to keep the government’s lights on, because of a deadly mix of ideological polarization and hyper-partisanship. During this period, the California legislature ranked among the most polarized in the country."

It is true that California had big problems in the 2000 decade, but the authors fail to note these points:

1. The energy crisis in California developed in 2000. Governor Gray Davis declared a state of emergency, concerning rolling blackouts for electricity, on January 17, 2001. At the time, every California legislator and all the state’s partisan executive positions, such as Governor, had been elected in the blanket primaries of 1998 and 2000. Yet the authors approve of blanket primaries.

2. The budget crisis was due to the fact that the state Constitution required the budget to be passed by a two-thirds vote in each house of the legislature, and the legislature during the 2000’s decade was deadlocked. The problem was easily solved in November 2010, when the voters passed Proposition 25, which said that the budget only needed a majority in each house of the legislature. California state government also improved by the fact that the state started using an independent redistricting commission after the 2010 census, replacing the old gerrymanders. Also at the same time legislative term limits were eased. The authors do not mention any of these reasons for improvement in state government.

Futhermore, the authors erroneously state on page 149 that before California switched to top-two, independents could not vote in "California’s closed primary elections." Actually, all Democratic and Republican primaries for state office and congress during the period 2002-2010 did allow independent voters to vote. For evidence, see any issue of America Votes (reference books that appear every two years, which give election returns and describe who could vote in each state’s primaries). Or see the California Secretary of State’s website. Just google "History of Political Parties that have adopted Party Rules Regarding No Party Preference Voters."

The authors make other factual errors as well. Page 43 says Ross Perot was the Reform Party nominee in 1992, but the party did not exist until Perot created it in 1995.

The book says on page 147 that the U.S. Supreme Court ruled in Washington State Grange v Washington State Republican Party, in 2008, that top-two primaries do not violate freedom of association for parties. Actually the Supreme Court said there wasn’t enough evidence in the case to know whether top-two violates freedom of association, and remanded.

The book says that 26 states have statewide initiatives, but there are only 24: Alaska, Arizona, Arkansas, California, Colorado, Florida, Idaho, Illinois, Maine, Massachusetts, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, Utah, Washington, and Wyoming.

State	Case Name	Year	Court	Case No.	Issue
Ala.	Patton v Camp	1991	US Dist, md	92V-885-N	number of signatures for an indp.
Alas.	Sigler v McAlpine	1988	Superior	3AN-88-8695	June independent petition deadline
Alas.	Sykes v McAlpine	1990	Superior	3AN-90-7508	August indp. petition deadline
Alas.	Libertarian Party v Coghill	1992	Superior	3AN-92-8181	August pet. deadline, president
Ariz.	Az. Libertarian Pty v Hull	1996	Superior	Maricopa 96-13996	June deadline to choose electors
Ariz.	Az. Green Party v Reagan	2016	US Dist	Cv16-2027	June deadline to choose electors
Ariz.	Az. Green Party v Bennett	2010	US Dist	Cv09-2412	out-of-state petitioner ban
Ark.	Lendall v Jernigan	1976	US Dist, ed	LR-76-C-184	April indp. petition deadline
Ark.	Lendall v McKuen	1988	US Dist, ed	LR-C-88-311	Jan. indp. petition deadline
Ark.	Moore v Martin	2017	8th circuit	15-3558	March indp. petition deadline
Cal.	Cal. Justice Comm. v Bowen	2012	US District	2012WL5057625	Jan. deadline, new parties
Cal.	Fulani v Eu	1988	US Dist, nd	C88-1427	60-day petition period
Cal.	Steiner v Mihaly	1972	St. Supreme	SF 22965	filing fee for write-in candidates
Cal.	Trump v Padilla	2019	US Dist, ed	2:19cv-1501	reveal tax return for ballot access
Co.	Ptak v Meyer	1994	US District	94-N-2250	number of signatures, indp. cand.
Co.	Colo. Dem. Party v Meyer	1988	District	Denver, 88cv-7646	duration of party membership
Ct.	A Connecticut Party v Kezer	1992	US District	2:92cv-550	new party can run for any office
Ct..	Curry v Kennelly	1980	US District	H-80-403	name protection for new party
Del.	Warren v Harper	1993	US District	C.A. 12744	Social Security number on petition
Fl.	Turin v State of Florida	1982	US Dist, sd	82cv-1819	petition deadline, special elections
Fl.	Migala v Martinez	1989	US Dist, nd	89-40168	no. of signatures, special elections
Fl.	Libt. Party of Fl v Morthan	1996	US Dist, nd	96cv-258	presidential substitution
Fl.	Socialist Workers Pty v Harris	2000	US Dist, nd	92cv-1451	party can’t be forced to post bond
Ga.	Citizens Pty of Ga v Poythress	1982	US Dist, nd	C82-1260A	petition deadline, special elections
Hi	Peoples Party v Ariyoshi	1972	US District	Cv72-3620	county distribution requirement
Hi	Libt Party of Hi v Waihee	1986	US District	cv-86-0439	April petition deadline new parties
Id.	Populist Party v Evans	1984	9th circuit	84-4108	county distribution requirement
Il.	McCarthy v Lunding	1976	US Dist, nd	76-C-2733	Dec. indp. pres. petition deadline
Il.	Nader 2000 Comm v Ill St Bd	2000	US Dist, nd	00C-4401	June new party petition deadline
In.	Warrick v Condre	1983	US Dist, sd	IP-83-810-C	Feb. pet. deadline minor parties
Iowa	Oviatt v Baxter	1992	US Dist, sd	4-92-cv-10513	no. of signatures for U.S. House
Iowa	Risher v Synhorst	1964	Polk circuit	Eq 70105	deadline to certify pres nominee
Ks.	Reagan v State of Kansas	1982	US District	82-4083	no. of signatures for new party
Ks.	Merritt v Graves I	1988	US District	87-4264	June pet. deadline independents
Me.	Huber v Secretary of State	1986	Superior	Kennebec cv-86-276	label for independent candidates
Me.	Libt. Party of Maine v Dunlap	2016	US District	2:16cv-00002	December deadline new party
Md.	Sparaco v Lamone	2016	US District	1:16cv-1579	Feb. deadline for indp cand. declr.
Md.	Dorsey v Lamone	2016	US District	1:16cv-1579	No. of signatures, independent
Ma.	Serrette v Connolly	1984	Superior	Suffolk 68172	May indp. petition deadline
Mi.	Fulani v Austin	1988	US Dist, ed	88cv-72331	new req can’t take effect too soon
Mo.	Consti. Party. v St. Louis Co.	2016	US Dist, ed	4:15cv-207	party can run for any office
Mt.	Kelly v McCulloch	2012	US District	cv-08-25	March indp. petition deadline
Neb.	Bernbeck v Gale	2018	US District	4:18cv-3073	no. of signatures, indp. cand.
Nev.	Fulani v Lau	1992	US District	cv-N-92-535	June petition deadline, new parties
NM	Woodruff v Herrera	2011	US District	1:09cv-449	party can nominate non-member
NM	Constitution Party v Duran	2013	US Dist	1:12cv-325	April petition deadline, new parties
Ohio	Denny v Eyrich	1984	US District	C-1-84-531,s.d.	Feb. ind. cand. petition deadline
Or.	Libt Party of Oregon v Paulus	1982	US District	Cv82-521	ban on paying circulators
Pa.	Libt. Party v Davis	1984	US District	84-0262, m.d.	April petition deadline, new parties
Pa.	Hall v Davis	1984	US District	84-1057, e.d.	April petition deadline, new parties
S.C.	Culbertson v Fowler	1974	US District	Cv72-645	filing fee for paupers
S.D.	Libt. Party of SD v Kundert	1983	US District	civ-83-3071	Feb. petition deadline, new parties
Vt.	Wright v Thomas	1976	US District	Cv76-31	fee for pres. primary candidates
Wa.	Libt Party of Wash. v Reed	2004	Superior	Thurs. 04-2019742	no. of votes in primary to be in gen.

On April 21, the Nebraska Secretary of State said that the Legal Marijuana Now Party petition is valid, and the party is a qualified party. It will run candidates in 2022. If it gets more than 5% for any statewide office, it will then also be qualified for 2024 and 2026.

Originally the Secretary of State had rejected the party’s petition, but upon further checking, he changed that determination.

Massachusetts: State House, Suffolk 19, March 30: Democrat Jeffrey Turco 1,861; independent Richard Fucillo 473; Republican Paul Garuccio 466. When this seat had last been up, in November 2020, only a Democrat had appeared on the ballot.

New Hampshire: State House, Hillsborough 21, April 13: Republican Bill Boyd 2,531; Democrat Wendy Thomas 2,144; American Solidarity Stephen Hollenberg 104. When this district last voted, it elected eight representatives and from the combined vote, Republicans got 52.53% of the vote and Democrats got 47.47%.

Wisconsin: State Senate, 13^th district, April 6: Republicans John Jagler 19,125 (51.2%); Democrat Melissa Winker 16,364 (43.8%); independent Spencer Zimmerman 1,702 (4.6%); American Solidarity Ben Schmitz 194 (.5%). The independent candidate’s ballot label was "Trump Conservative."

When this seat was up in November 2018, the percentages were: Republican 59.1%; Democratic 40.9%.

Statistics of the Presidential and Congressional Election of November 3, 2020 is now in book form. It is free to anyone who asks for it. Phone 202-225-1908.

On April 6, Green Party member Peter Schwartzman was elected Mayor of Galesburg, Illinois. Also, Libertarian Party member Troy Brooks was elected to the city council of Alva, Oklahoma.

Although it is a long time until the November 2024 presidential election, three parties are petitioning now in Arkansas for presidential ballot status. This year, the Arkansas legislature raised the petition requirement for minor party presidential status from 1,000 signatures, to 5,000. But the new law does not take effect until 90 days after the legislature adjourns, which will probably mean it takes effect in December 2021. The Arkansas presidential status petition does not require the name of any candidate, and the law permits it to be circulated any time, and submitted as early as the proponents wish. The Green, American Solidarity, and Prohibition Parties are therefore working now to get the 1,000 signatures needed under the old law, with the intent of submitting the signatures before the new law takes effect.

The national leadership of the Communist Party recently recommended that the party again run candidates for public office. The last time the party had a nominee with the party label for a partisan federal or state office was in 1996, when David S. Mirtz ran for the New York Assembly, from a Bronx district.

In 2020, an individual in Vermont, Christopher Helali, got on the ballot for U.S. House, and he used the ballot label "Communist." However, he was not part of the Communist Party organization. He was able to get on the ballot with no petition, because for 2020 only, Vermont has suspended all petition requiremens.