TEXAS LEGISLATURE PASSES BILL FOR A LATER PRIMARY; BALLOT ACCESS WILL BE AFFECTED

On August 26, the Texas legislature passed SB 13. It provides for a later 2022 primary in the event that redistricting isn’t finished by November 15, 2021. Current law says the primary will be on March 1, 2022, but it is virtually certain that redistricting can’t be finished by November 2021. Whatever plans pass the legislature, they will inevitably be challenged in court.

If the redistricting isn’t final by November 15, but is final by December 28, then the primary will be in April. If redistricting isn’t finished by December 28, the primary will be in May, with a runoff in July. If this occurs, ballot access will need to be completely revised. Texas law does not permit petitions for an independent candidate, or a new party, to circulate until after the primary.

MAYOR OF BUFFALO EXPECTED TO SUE OVER PETITION DEADLINE

On August 27, the Erie County Board of Election Commissioners rejected the independent petition filed by the Mayor of Buffalo, Byron Brown, because it was filed after the deadline. He wants to run for re-election, but he lost the June Democratic primary, so he then circulated a petition to be on the November ballot as the candidate of the Buffalo Party.

His petition had 3,000 signatures and the requirement is 750. He submitted the petition on the old August deadline, but in 2019 the New York legislature moved that deadline to May, which is unconstitutional under every precedent. Independent candidate petition deadlines cannot be more than a day or so earlier than the primary date, and the New York deadline is a month before the primary.

On August 23, the Idaho Supreme Court unanimously rejected two recent laws that handicap the ability of people to use the statewide initiative. Reclaim Idahov Denney, 48734 and 48760.

The decision strikes down a 2021 law that required signatures of 6% of the registered voters in all 35 legislative districts in the state. The decision also strikes down a 2020 law that said no initiative can take effect until July 1 of the year following the election.

The decision uses strict scrutiny, and says that there is no compelling state interest in requiring signatures from all 35 legislative districts. Page 42 of the decision says, “This power (the initiative) is meaningless unless it is accessible.” Page 37 says, “There is simply no logical reason why a ballot proposition supported by 6% of the voters in 34 of the 35 legislative districts has not clearly established that it has statewide support.” The opinion also contains a history of the use of the statewide initiative throughout its existence, and points out that even under the old law, very few initiatives qualified in any one election year.

The decision held that one set of plaintiffs lacked standing, but another set did have standing. Justice John Stegner wrote separately to say that he thought all plaintiffs had standing, and that standing is generally more relaxed under state constitutions than under the U.S. Constitution. Justice Robyn Brody wrote separately to say that although she agrees with the holding, she would not have applied strict scrutiny, but rather a balancing test.

On August 24, the U.S. House poassed HR 4, the "John R. Lewis Voting Rights Advancement Act of 2021." It would restore sections 4 and 5 of the Act, which were declared unconstitutional in 2013 in Shelby County v Holder, 570 U.S. 529. These are the parts of the law that say jurisdictions that have a history of injuring voting rights for racial minorities cannot change any voting law or procedure without asking for approval from the Voting Rights Section of the U.S. Justice Department.

The old preclearance law was struck down because it punished jurisdictions for events that had happened as long ago as 65 years. The bill changes that, so that a jurisdiction only falls under preclearance if it has 15 or more violations in the previous 25 years, or 10 or more violations if one was at the state level.

The Voting Rights Act has sometimes been used to block ballot access restrictions, but only when the restriction injured a racial minority. The Act prevented Mississippi from increasing the statewide independent petition from 1,000 to 10,000 signatures in 1966, because it was clear that the change was meant to block an African-American independent candidate for the U.S. Senate that year. It was also used to block Alabama from stiffening the definition of a qualified party in 1982, because the change would have removed an African-American party, the National Democratic Party, from the ballot that year. Alabama was allowed to make the change, but not immediately.

As reported earlier, on March 29, 2021, U.S. District Court Judge Leigh May struck down the Georgia 5% petition (of the number of registered voters) for ballot access for U.S. House, for independent candidates and the nominees of parties that didn’t poll 20% of the vote in the last election. She had then asked both sides to suggest what the new requirements should be, until the legislature fixes the law. The Libertarian Party suggested 500 signatures. The State objected to that idea, but did not propose its own solution.

On August 23, the judge tentatively suggested a petition of 1% of the registered voters, which would be 5,150 signatures in the average district in 2022. Her order also said the 1% should apply to petitions for the legislature, and for partisan county office. That was a surprise, because the Complaint in the case only challenged the requirements for U.S. House, but no other district or county offices. The existing law for those offices is also a petition of 5%. The existing petition for statewide office is 7,500 signatures for president, and 1% for other statewide offices, which is approximately 70,000 signatures.

If the judge’s tentative decision is finalized, Georgia will still have one of the nation’s most severe petition laws in the nation for U.S. House. For example, as applied to the Libertarian Party in 2022, no Libertarian running for U.S. House in any other state except Alabama would require more than 5,000 signatures (although in North Dakota, Ohio and Tennessee, they would not have the party label). Furthermore, the Georgia Libertarian Party has already showed that it has substantial voter support. It is always on the ballot for statewide office, and it always polls over 100,000 votes in some races with both a Republican and a Democrat, and always polls over 30% of the vote in statewide races with no Democrat running.

The judge asked both sides to respond to her idea, by September 2. She also said that she would require the filing fee, which is over $5,000 for U.S. House (3% of the office’s annual salary). So far, neither side has responded.

Generally, when judges strike down the number of signatures in a ballot access case, they don’t substitute a new requirement. Instead they most often put the party or the candidate on the ballot with no petition. Examples:

1. In 1968 the U.S. Supreme Court put the American Independent Party on the Ohio ballot, in Williams v Rhodes.393 U.S. 23. However, the party had already submitted many signatures, although they were all invalid because they were filed five months after the deadline.

2. In 1976 the U.S. Supreme Court put independent presidential candidate Eugene McCarthy on the ballot in Texas with no petition. McCarthy v Briscoe, 429 U.S. 1317.

3. Also in 1976, the Fifth Circuit put McCarthy on the ballot in Florida with no petition (at the time, Florida was in the Fifth Circuit). McCarthy v Askew, 540 F.2d 1254; a U.S. District Court put McCarthy on in Delaware with no petition. McCarthy v Tribbitt, 421 F.Supp. 1193; a U.S. District Court put an independent in on Delaware for U.S. Senate with no petition. McInerny v Wrightson, 421 F.Supp. 726.

4. In 1980, a U.S. District Court put Gus Hall (Communist Party presidential candidate) on the Michigan ballot with no petition. Hall v Austin, 495 F.Supp. 782.

5. In 1982, a U.S. District Court put an independent candidate on the Michigan ballot for a statewide office, and in 1984 the Sixth Circuit upheld that decision. Goldman-Frankie v Austin, 727 F.2d 603. Also in 1982, a U.S. District Court put the Libertarian Party on the Kansas ballot with no petition. Reagan v State, not reported, 82-4083.

6. In 1984, a U.S. District Court put the Libertarian Party on in Oklahoma with no requirement that it collect any more signatures (it had been trying but had not succeeded). Libertarian Party of Oklahoma v Oklahoma State Election Board, 593 F.Supp. 118.

7. In 1986, a U.S. District Court put the Libertarian Party on in Nevada with no requirement that it collect any more signatures (it had been trying but had not succeeded). Libertarian Party of Nevada v Swackhamer, 638 F.Supp. 565.

In 2008, a U.S. District Court put the Libertarian Party on in Ohio with no need for a petition. Libertarian Party of Ohio v Brunner, not reported, s.d., 2:08cv-555.

The basis for these decisions was evidence that the candidate or party had some voter support, as measured by polls, or organizational strength, or sometimes by having attempted to petition.

Even when courts have set new petition requirements to replace old, void laws, they have usually set a very lower number of signatures. For instance, in 2017 a U.S. District Court in Montana altered the number of signatures for U.S. House from 14,268 signatures to 400 signatures, for special elections. In 2016 a U.S. District Court in Georgia set the presidential independent and minor party petition at 7,500 signatures, which was one-tenth of 1% of the registration.

Judge May did not deal with the point that requiring a severe requirement for Libertarian nominees for U.S. House violates Equal Protection, because the state does not require Libertarian nominees for statewide office to submit any petition. She wrote that the Equal Protection part of the case is moot, when it clearly is not, because it affects the nature of the relief.

It is likely that the party will submit some of this information, and other points, to Judge May, and perhaps she will change her order to an easier procedure.

The oldest ballot access still pending in the trial court is the Illinois lawsuit against the 5% petition for independent candidates for U.S. House, Gill v Scholz, c.d., 3:16cv-3221. It was filed in 2016 by independent candidate David Gill. On August 25, 2016, U.S. District Court Judge Sue Myerscough issued an injunction putting him on the ballot. But on September 9, the Seventh Circuit stayed her decision, although it did not explain why. The order consisted of only one sentence.

Then, while the case was pending for declaratory relief before Judge Myerscough, another U.S. District Court Judge in the Central District of Illinois, Colin Bruce, lost his pending criminal caseload, because of an ethical lapse. The chief judge of the district then reassigned many civil cases to Judge Bruce, to give him some work. Among the reassigned cases was Gill v Scholz.

On December 18, 2018, Judge Bruce upheld the Illinois 5% petition, but he made some factual errors. On June 18, 2020, the Seventh Circuit noted the errors and send the case back to Judge Bruce.

On August 24, 2021, Judge Bruce recused himself from the case, without explaining why. So now the case will be assigned to another U.S. District Court Judge. Possibly it will go back to Judge Myerscough.

Proponents of a top-five system in Utah have begun to circulate an initiative to implement that system. Like top-two in Washington state, and top-four in Alaska, the initiative makes it more difficult for parties to remain qualified. In Utah, a party is a group that got 2% for any statewide race at either of the last two elections, but top-anything deprives parties of party nominees, so that method won’t work any more, except for president.

On July 29, an Alaska state trial court upheld the top-four initiative passed by the voters in 2020. Kohlhaas v State, 3AN-20-9532. The only political party plaintiff in that case is the Alaskan Independence Party, which is Alaska’s only ballot-qualified third party.

The twenty-page decision barely mentions the strongest precedent against the system, Green Party of Alaska v State. In that case, the Alaska Supreme Court said that protection for freedom of association in the state Constitution is so strong, that if the Green Party and the Republican Moderate Party (the plaintiffs) wanted to have a blanket primary, they could do that, even though the legislature had abolished the blanket primary.

The same principle, as applied to the Alaskan Independence Party in the top-four case, ought to mean that if the Alaskan Independence Party wants to have its own nominee on the general election ballot, it should be able to insist on that.

Under the top-four initiative, party labels are on the ballot, but parties don’t have nominees. No one can be on the November ballot except the four candidates who got the most votes in the primary.

The plaintiffs in the top-four case expect to appeal to the State Supreme Court. Meanwhile, proponents of the top-four system are trying to persuade the court to order that the plaintiffs must pay attorney fees incurred by the intervenors. California top-two proponents did the same thing in California in 2012.

On August 9, eleven Texas Democratic State Senators introduced SB 58. It makes ballot access easier. It abolishes the laws that say voters who voted in a primary can’t sign ballot access petitions for independents and new parties.

On August 13, the Ohio Libertarian Party asked the U.S. Supreme Court to hear Libertarian Party of Ohio v Crites, 21-226. The Sixth Circuit had upheld the composition of the Ohio Elections Commission, which by law includes three members of each of the two largest parties, and one person who is not a member of any party. Therefore no member of a third party may ever serve.

On August 15, the Canadian government announced that there will be a parliamentary election on September 20, Monday.

On August 21, the organization that sponsors debates among the leaders of the various parties announced the rules for inclusion in the debates. A party leader may participate if his or her party has at least one member of Parliament who was elected under the party name. Also a party leader may participate if his or her party is at 4% in the polls. Finally, a party leader may participate if his or her party polled at least 4% of the national vote in the previous Parliamentary election.

The chart below shows the most crowded general election ballot for U.S. House, for regularly-scheduled elections, in each state’s history. Note that Georgia has never had more than three candidates for U.S. House, in a regular election, in the entire history of government-printed ballots. This shows how exaggerated Georgia’s fear of overcrowded ballots is. The chart also shows that even states with easy ballot access requirements for that office need not fear overcrowded ballots.

State & District	No. of Candidates	Year	Requirement
Alabama 5	6	1968	hold a convention
Alaska at-large	5	2006	3,128 signatures
Arizona at-large	5	1912	66 signatures
Arkansas 1	4	2012	2,000 signatures
California 22	6	1996	10,188 signatures
Colorado 1	6	1896	100 signatures
Connecticut 4	6	1914	hold a convention
Delaware at-large	6	1976	2,431 signatures
Dist. of Columbia	8	2020	250 signatures
Florida 1	5	1912	hold a convention
Georgia 5	3	1982	4,039 signatures
Hawaii 2	6	2020	25 signatures
Idaho 1	7	2018	500 signatures
Illinois 9	6	1912	591 signatures
Indiana 1	6	1932	200 signatures
Iowa 3	6	2018	375 signatures
Kansas 3	5	1914	2,693 signatures
Kentucky 3	6	1934	400 signatures
Louisiana 3	12	2016	Pay $600
Maine 2	5	1914	359 signatures
Maryland 3	6	1914	200 signatures
Massachusetts 9	5	2016	2,000 signatures
Michigan 16	7	1936	hold a convention
Minnesota 5	7	2010	1,000 signatures
Mississippi 1	9	2010	100 signatures
Missouri 15	6	1916	hold a convention
Montana 2	5	1932	hold a convention
Nebraska 2	7	1932	200 signatures
Nevada 3	7	2018	100 signatures
New Hampshire 1	6	1896	250 signatures
New Jersey 13	11	1958	100 signatures
New Mexico at-large	5	1932	hold a convention
New York 23	7	1934	3,000 signatures
North Carolina 11	4	2020	5,436 signatures
North Dakota at-large	5	1900	300 signatures
Ohio 20	6	1900	299 signatures
Oklahoma 5	6	1976	pay a fee
Oregon 3	8	1934	meeting (100 attendees)
Pennsylvania 6	6	1936	1,020 signatures
Rhode Island 1	5	1996	500 signatures
South Carolina 1	7	2010	10,000 signatures
South Dakota 1	5	1932	20 signatures
Tennessee 9	11	1996	25 signatures
Texas 23	5	2010	500 signatures
Utah 2	6	1998	100 signatures
Vermont at-large	8	2006	250 signatures
Virginia 3	6	1904	file declaration of candidacy
Washington 3	6	1914	meeting (no minimum attendance)
West Virginia 1	5	1914	552 signatures
Wisconsin 5	6	1932	1,960 signatures
Wyoming at-large	5	2012	4,018 signatures

STATE	REQUIREMENTS		SIGNATURES OR REGIS. OBTAINED				DEADLINES
	Full Party	Cand	Lib’t	Green	Consti	Peoples	Party Due	Indp. Due
Ala.	51,588	51,588	*23,000	0	0	0	May 24	May 24
Alaska	(reg) 10,821	pay fee	*(rg) 6,846	*(rg) 1,479	*(rg) 667	0	May 3	June 1
Ariz.	31,686	(est) #40,670	already on	*2,600	0	0	Nov 25 ‘21	May 4
Ark.	10,000	10,000	*already on	0	0	0	Dec 24 ‘21	May 2
Calif.	(es) (reg) 74,000	65 + fee	already on	already on	*(rg) 193	(rg) 567	Jan. 4	March 11
Colo.	(reg) 1,000	#8,000	already on	already on	already on	500	Jan. 14	July 14
Conn.	no procedure	#7,500	already on	already on	can’t start	can’t start	– – –	Aug. 10
Del.	(est.) (reg) 750	(est.) 7,500	already on	*726	*(rg) 278	0	Aug. 23	July 15
D.C.	no procedure	#3,000	already on	already on	can’t start	can’t start	– – –	Aug. 10
Florida	0	pay fee	already on	already on	already on	0	April 29	May 6
Georgia	72,336	#64,354	already on	0	0	0	July 12	July 12
Hawaii	833	25	already on	already on	already on	0	Feb. 20	June 7
Idaho	17,348	1,000	already on	*0	already on	0	Aug. 30	March 11
Illinois	no procedure	#25,000	can’t start	can’t start	can’t start	can’t start	– – –	*July 13
Indiana	no procedure	#44,935	already on	0	0	0	– – –	June 30
Iowa	no procedure	#1,500	0	0	0	0	– – –	in court
Kansas	21,102	5,000	already on	*750	0	0	June 1	Aug. 1
Ky.	no procedure	#5,000	can’t start	can’t start	can’t start	can’t start	– – –	Aug. 9
La.	(reg) 1,000	#pay fee	already on	already on	(rg) 267	0	Aug. 19	Aug. 19
Maine	in court	#4,000	in court	already on	0	(rg) 300	in court	June 1
Md.	10,000	10,000	already on	already on	0	0	Aug. 1	Aug. 1
Mass.	(est) (reg) 45,500	#10,000	(rg) 19,097	(rg) 5,709	(rg) 370	0	Feb. 1	Aug. 2
Mich.	42,506	30,000	already on	already on	already on	0	July 21	July 21
Minn.	163,859	#2,000	0	0	0	0	April 30	May 31
Miss.	be organized	1,000	already on	already on	already on	0	March 1	March 1
Mo.	10,000	10,000	already on	*1,000	already on	2,000	July 25	July 25
Mont.	5,000	#16,959	already on	0	0	0	March 7	May 31
Nebr.	6,980	4,000	already on	0	0	0	Aug. 1	Sep. 1
Nev.	13,557	250	already on	(reg) 2,274	already on	0	*April 27	May 13
N. Hamp.	23,798	#3,000	0	0	0	0	Aug. 9	Aug. 9
N.J.	no procedure	#800	0	0	0	0	– – –	June 7
N. M.	3,483	10,260	already on	0	0	0	June 30	June 28
N.Y.	no procedure	#45,000	in court	in court	can’t start	can’t start	– – –	*???
No. Car.	13,757	82,542	already on	*4,000	*1,000	0	May 17	March 8
No. Dak.	7,000	1,000	0	0	0	0	April 11	Sep. 5
Ohio	57,630	5,000	0	0	0	100	July 6	May 2
Okla.	35,592	pay fee	already on	0	0	0	Feb. 28	April 15
Oregon	27,960	23,737	already on	already on	already on	100	Aug. 30	Aug. 30
Penn.	no procedure	5,000	can’t start	can’t start	can’t start	can’t start	– – –	Aug. 1
R.I.	18,758	#1,000	0	0	0	0	Aug. 1	July 15
So. Car.	10,000	10,000	already on	already on	already on	0	May 8	July 15
So. Dak.	3,393	3,393	already on	0	0	0	July 1	April 26
Tenn.	56,083	25	0	0	0	0	Aug. 10	April 7
Texas	83,435	83,435	already on	already on	can’t start	can’t start	May 15	June 23
Utah	2,000	#1,000	already on	0	already on	0	Nov 30 ‘21	March 15
Vermont	be organized	#500	already on	0	0	0	Dec 31 ‘21	Aug. 18
Virginia	no procedure	#10,000	can’t start	can’t start	can’t start	can’t start	– – –	June 21
Wash.	no procedure	#pay fee	can’t start	can’t start	can’t start	can’t start	– – –	May 20
West Va.	no procedure	#7,610	already on	already on	0	0	– – –	Aug. 1
Wisc.	10,000	#2,000	already on	0	already on	0	April 1	June 1
Wyo.	5,418	5,418	already on	*0	already on	0	June 1	Aug. 28
TOTAL STATES ON			*33	*15	*13	0	~	~

#partisan label permitted.
"WK FAM" = Working Familes Party.
(rg.) = registered members.
*change since April 1 2021 BAN.

On August 17, Burlington, Vermont, held a special election to fill the vacancy on the City Council, ward three. Progressive Party nominee Joe Magee won with 47.1%. An independent endorsed by the Democratic Party received 39.4%, and the Republican received 13.5%. The Progressive Party had won the previous election for the same office in ward three.

Former Colorado Governor Richard Lamm died on July 29, at the age of 85. He had sought the Reform Party presidential nomination in 1996. After he declared, Ross Perot also declared, and they were the only candidates in the party’s postal presidential primary ballot. Perot defeated Lamm by 32,145 to 17,121. Lamm only carried Alaska, Colorado, Minnesota, and the District of Columbia.

Markham Robinson, acting chair of the American Independent Party, died on August 25. Under his leadership, the party did some unorthodox actions. In 2016 it nominated Donald Trump for president, so that Trump was listed on the November ballot as the nominee of two parties. This was the first time California had seen a "fusion" presidential candidate on the ballot since 1940. Also, in 2020, it nominated Rocky De La Fuente for president and Kanye West for vice-president. That ticket received 60,160 votes in California.

The Working Families Party has decided not to nominate anyone for Mayor of New York city. The election is November 2, 2021. The party has been ballot-qualified since 1998 and this is the first time it has not nominated for that office.

On June 15, the District of Columbia held a special election to fill a vacancy on an Advisory Neighborhood Commission. That particular Commission district is dominated by the city’s prison, which has 1,400 inhabitants. All five candidates were inmates of the prison. The election was won by Joel Caston, who holds zoom meetings with constituents.

On August 22, the Coalition for Free & Open Elections (COFOE) held its annual board meeting, via zoom. COFOE was founded in 1985 and is a loose coalition of many of the nation’s nationally-organized parties, as well as some organizations that are sympathetic to their election law problems, such as FairVote. The minutes of the meeting can be seen at cofoe.org.

Virginia elects its statewide state officers, and the lower house of its legislature, on November 2, 2021. The Liberation Party is on the ballot for Governor. The Libertarian Party is on the ballot for several legislative races. The Virginia State Board of Elections only prints a single letter on general election ballots, to identify party nominees (except that for the presidential part of the ballot, the full party names are printed). This year the Board is using "L" for both the Liberation Party and the Libertarian Party.

The only other state that uses just a single letter to identify parties on ballots is Hawaii. However, Hawaii printed "Rf" for Reform Party nominees and "R" for Republican nominees. Back when the Republican and Reform Parties were both on in Virginia, in the 1997 gubernatorial election, Virginia did not print any party labels on the ballot, except for president, so the issue didn’t arise in Virginia in 1997.