RESTRICTIVE BALLOT ACCESS LAWS STRUCK DOWN IN MAINE AND MONTANA

During November, ballot access restrictions that hamper minor parties were struck down in Maine and Montana.

Maine

On November 17, U.S. District Court Judge Lance On November 17, U.S. District Court Judge Lance E. Walker, a Trump appointee, struck down two Maine ballot access laws that relate to new and minor parties. Baines v Bellows, 1:19cv-509. This is a Libertarian Party case filed in 2019, after the party lost its qualified status in Maine.

The 41-page decision strikes down the rules for a candidate to get on the primary ballot of a small qualified party. Maine is one of only three states that requires petitions to place candidates on a primary ballot, that has registration by party, and does not take into account the size of the party when it determines how many signatures are needed. Thus anyone seeking a place on a Maine primary ballot for statewide office needs 2,000 signatures of party members, and only party members may sign. It is obviously far easier for a Democrat or a Republican to find 2,000 party members to sign a primary petition, than a party that only has a few thousand registered members.

The other two states with this characteristic are Arizona and Massachusetts, but at least those two states let independent voters sign primary petitions. Maine does not. As a result, no qualified party in Maine, other than the Democratic and Republican Parties, has been able to run any candidates for either house of Congress in the last 100 years. Qualified third parties in Maine in the last 30 years have been the Green, Libertarian, Reform, and Americans Elect Parties.

The other law that was struck down is termed the "purge". When a party goes off the ballot, all its registrants are automatically converted to independent status, without even telling them. Because parties in Maine mostly obtain and retain party status based on how many registered voters they have, the law requiring all of a party’s members to be erased is extremely hurtful, and the judge felt strongly about that. Page 40 says, "The act of purging voter enrollment is a punishment in search of a wrong that would make Kafka blush." He also said there is no real burden on election officials by allowing parties to keep their registrants, on page 38.

The decision upholds the January (of election years) deadline for a group to become a qualified party via a registration drive. There is considerable precedent around the nation that such early deadlines to qualify new parties are unconstitutional, but the decision does not mention them, and this part of the decision is quite short. It is likely that a newly-formed party would be a better plaintiff to attack the deadline than the Libertarian Party, because the Libertarian Party has been in continous existence for 50 years, whereas a party formed in an election year could not have been expected to have qualified before it was in existence.

Further proceedings will be held in this case to determine what the remedy should be.

Montana

On November 8, the Ninth Circuit issued an opinion in MontanaGreen Party v Jacobsen, 20-35340. It struck down the unequal distribution requirement that has existed for Montana petitions for new party recognition ever since 1981. The unequal distribution requirement was responsible for the Green Party’s petition failure in both 2018 and 2020. It requires signatures from one-third of the State House districts. The fatal flaw is that it requires almost three times as many signatures from some districts as from others, even though all districts are approximately equal in population.

The decision says, "The State has provided no reason, much less a compelling reason, for requiring far more signatures in some equal-population districts than in others."

The decision upholds the March petition deadline for new party petitions that had existed in 2018 and 2020, but it would have been surprising if the decision had struck down that deadline, because the Montana Green Party complied with the March deadline in both 2018 and 2020. Thus there was no evidence that the early deadline injured the party.

Another case from any state in the Ninth Circuit against such a similar deadline might win someday, if the plaintiff-party fails to meet the deadline and presents evidence about how the deadline injured it.

The decision is by Judge William Fletcher, a Clinton appointee; it is also signed by Judge Michelle Friedland, an Obama appointee; and Judge Frederic Block, a Clinton appointee. The lower court had upheld the distribution requirement.

The decision erroneously seems to say that the new deadline of February 4, created this year, is also constitutional. It says that an earlier deadline was upheld in 2016 in Arizona Green Party v Reagan, 838 F.3d 983, but actually in that case the upheld deadline was February 27, 2014, whereas the 2022 Montana deadline (under the new law passed this year) will be February 4. Also the only reason the Ninth Circuit upheld the Arizona deadline was that the Green Party did not submit any evidence that the early deadline injured it. Furthermore the weather is very different in winter in Montana compared to Arizona. The decision also seems to have a typographical error concerning the deadline law. On page sixteen it correctly says the deadline is 123 days before the primary, but on page sixteen it says the Montana deadline is 128 days before the primary. The Montana primary is the first Tuesday after the first Wednesday in June. The Green Party has asked the court to fix the error.

Other states with unequal distribution requirements for candidate or party petitions are Arizona and Iowa. Neither state’s distribution requirement has ever been challenged in court; they are both fairly new.

On November 19, the Eleventh Circuit issued an opinion in Libertarian Party of Alabama v Merrill, 20-13356. It upholds Alabama’s discriminatory policy for access to the list of registered voters. The 28-page opinion will not be published. The decision is by Judge Robert Luck, a Trump appointee. It is also signed by Judge Jill Pryor, an Obama appointee; and Judge Andrew Brasher, a Trump appointee.

Alabama gives a free list of the registered voters to the qualified parties, and to state legislators, and to the state administrative office of courts, and to election officials of other states. But it charges unqualified parties $35,913 for the list.

In 1970 a 3-judge U.S. District Court in New York ruled that if the state gives a list of the registered voters free to qualified parties, it must also give it to parties that are petitioning to get on the ballot. The U.S. Supreme Court summarily affirmed this decision, 400 U.S. 806. The new Eleventh Circuit decision says this precedent doesn’t control this case, because in New York the list was given to parties that, while not qualified, "had succeeded in gaining a position on the ballot." In the New York case, the plaintiffs Socialist Workers Party, and Socialist Labor Party, sued in early 1970 to help them with their 1970 petition. It is true that they had appeared on the New York ballot in 1968 and previous years, but that does not differentiate that case from the Alabama case. The Libertarian Party has also gained a position on the Alabama in the past, which the decision admits.

The decision says if the state had to give the Libertarian Party the list, an employee of the Secretary of State "would have to export the list from a program called PowerProfile; import the data into Microsoft Access; export the data from Access to a text file; and then email the list to the party requesting it. This process takes about fifty minutes and, because of the demands of processing this very large file, prevents the employee’s computer from doing other tasks."

The decision does not mention any of the other five precedents from other courts that ruled that if the state gives a free list of the registered voters to the qualified parties, it must give the list free to groups that are petitioning.

The decision admits that "the voter list is an important tool for effectively petitioning for ballot access." The decision does not mention that the Libertarian Party is currently petitioning for 2022 in Alabama. However, that fact is not in the record, because this case was filed before the party decided to launch its statewide 2022 petition.

On November 1, the U.S. Supreme Court refused to hear LibertarianParty of Ohio v Crites, 21-226. This is the case over the composition of the Ohio Election Commission. Ohio law says the members of the Commission must be three members of the two largest parties (as measured by which two parties have the most seats in the legislature), and a member chosen by the other six who is not a member of any party. Thus a minor party member may never serve.

The Court’s action continues a 30-year unbroken refusal by the court to accept any cert petition filed by a minor party or independent candidate, unless the two major parties were also in the case on the same side as the minor party. Yet during that 30-year period the court accepted six cert petitions filed when the minor party or independent candidate had won in the court below, and the state sought Supreme Court review. They include cases on ballot access, fusion, party freedom to decide for itself to let independents vote in its primaries, debates, and exclusion of independent and minor party members from serving as a state court judge.

The last time the Court accepted a minor party petition was Norman v Reed, a 1991 Illinois case won by the Harold Washington Party. That decision struck down the number of signatures for Cook County office.

Earlier this year, the Nebraska legislature passed a bill setting a limit on how long a petition to qualify a new party may circulate. Governor Pete Ricketts signed LB 285 on May 26, 2021. Previously there was no limit on how long the petition could circulate. Under the new law, a petition can only circulate during the two years between elections.

The Alaska Supreme Court will hear Kohlhaas v State on January 18, 2022. this is the case over whether the top-four initiative passed last year violates the State Constitution. On Novembr 15, opponents of the system filed their brief. Also, two former Alaska gubernatorial candidates filed an amicus brief against the system.

The initiative provides that the only people who can run in November are the four candidates who polled the most votes in the primary. There are no party nominees. Ranked choice voting is not used in the primary, but it is used in the general election.

The three main arguments against the top-four system are: (1) the Alaska Constitution has more protection for political party freedom of association than the U.S. Constitution des, and the top-four system, by allowing party labels on the ballot even when the party does not support a candidate using its label, violates the party’s use of its name; (2) the State Constitution says that governors must be elected in plurality elections, and ranked choice voting only elects people who win a majority; (3) the State Constitution says the Lieutenant Governor must be nominated the same way as all other partisan candidates, but the top-four system forces Lieutenant Governor candidates in the primary to run in tandem with particular gubernatorial candidates.

One of the individuals who filed the amicus is Dick Randolph, who was the first person ever elected to a state legislature of any state as a Libertarian.

On November 2, the voters of three cities voted to use ranked choice voting for their own elections: Broomfield, Co.; Westbrook, Me.; Ann Arbor, Mi.

On November 5, the U.S. House passed the infrastructure bill. Thirteen Republicans voted for the bill, bucking their party’s leadership. They are Don Bacon of Nebraska, Brian Fitzpatrick of Pennsylvania, Andrew Gabarino of New York, Anthony Gonzalez of Ohio, John Katko of New York, Adam Kinzinger of Illinois, Nicole Malliotakis of New York, David McKinley of West Virginia, Tom Reed of New York, Chris Smith of New Jersey, Fred Upton of Michigan, Jeff Van Drew of New Jersey, and Don Young of Alaska.

These 13 individuals are receiving praise for being willing to vote for a bill that the other major party supports. They are held up as examples of politicians willing to compromise and not let partisanship dictate their behavior.

There are 19 Republicans in the House from states in which there are no party nominees (11 from California, 3 from Washington, and 5 from Louisiana). None of these 19 voted in favor of the infrastructure bill.

The Institute for Political Innovation, headed by Katherine Gehl, promotes initiatives to end the ability of parties to have nominees. The group says that if parties didn’t have nominees, more moderates would get elected. But the group’s thesis is contradicted by the roll-call. If the group were correct, Republicans from California, Louisiana and Washington would have voted for the bill.

On November 17, the Eleventh Circuit refused to stay the order of a U.S. District Court, cutting the Georgia petition requirement for U.S. House and legislature (for minor party and independent candidates) from 5% to 1%. Cowen v Raffensperger, 21-13199. The Eleventh Circuit is expediting the state’s appeal.

Proponents of the National Popular Vote Plan have begun circulating their initiative in Michigan. If it gets on the ballot, the voters would decide whether Michigan should join the plan. The plan is a method to avoid future presidential elections in which the person who places first in the popular vote still loses the election.

State	No. Candidates	Year	Requirement that Year
Alabama	7	1980	hold a convention; no petition needed
Alaska	7	2004	2,845 signatures
Arizona	5	1992	10,555 signatures
Arkansas	4	2014	10,000 signatures
California	7	2000	149,692 signatures
Colorado	7	2016	1,000 signatures
Connecticut	6	1938	5,504 signatures
Delaware	5	2002	257 registrations
Florida	10	2010	pay filing fee; no petition needed
Georgia	20	2020	pay filing fee; no petition needed (special election)
Hawaii	5	2016	707 signatures
Idaho	5	2008	1,000 signatures
Illinois	12	1926	1,000 signatures
Indiana	7	1932	500 signatures
Iowa	9	1992	1,000 signatures
Kansas	6	1984	2,500 signatures
Kentucky	5	1996	5,000 signatures
Louisiana	24	2016	pay filing fee
Maine	6	2012	4,000 signatures
Maryland	6	1940	2,000 signatures
Massachusetts	10	1936	1,000 signatures
Michigan	8	1936	hold convention; no petition needed
Minnesota	8	1996	2,000 signatures
Mississippi	5	2000	submit list of party officers; no petition needed
Missouri	6	1952	hold a convention; no petition needed
Montana	5	1924	hold a convention; no petition needed
Nebraska	4	2014	4,000 signatures
Nevada	8	2010	250 signatures
New Hampshire	4	2016	3,000 signatures
New Jersey	11	2012	800 signatures
New Mexico	4	1996	one petition of 2,339 sigs.; another one of 4,678 sigs.
New York	8	2000	15,000 signatures
North Carolina	4	2020	11,778 signatures
North Dakota	5	1944	300 signatures
Ohio	6	1976	5,000 signatures
Oklahoma	6	1936	pay filing fee; no petition needeed
Oregon	7	1996	14,601 signatures
Pennsylvania	8	1950	8,826 signatures
Rhode Island	5	1924	500 signatures
South Carolina	6	2004	10,000 signatures
South Dakota	7	1924	hold convention; no petition needed
Tennessee	12	2014	25 signatures
Texas	71	1961	file declaration of candidacy (special election)
Utah	6	2006	1,000 signatures
Vermont	9	2018	500 signatures
Virginia	7	1934	file declaration of candidacy
Washington	8	1934	hold convention with no minimum attendance required
West Virginia	5	2014	6,365 signatures
Wisconsin	7	1992	2,000 signatures
Wyoming	4	2014	4,833 signatures

This chart shows states that required at least 5,000 signatures never had a crowded US Senate ballot, where "crowded ballot" means more than eight candidates for any particular office.

~	Dem.	Rep.	Indp, misc	Lib’t.	Green	Consti.	Wk Fam	Reform	other
Alaska	78,913	144,467	341,410	6,899	1,491	685	?	?	20,958
Arizona	1,372,884	1,504,990	1,431,141	36,839	3,988	?	?	?	– –
Arkansas	88,111	119,051	1,538,666	680	96	?	?	?	– –
Calif.	10,265,897	5,298,738	5,344,568	214,698	88,419	189	?	?	844,834
Colorado	1,125,285	998,848	1,691,182	43,181	8,877	12,439	?	?	7,261
Conn.	826,379	464,761	933,768	3,501	1,332	10	326	15	32,358
Delaware	358,698	207,203	171,179	2,161	727	269	331	43	11,305
Dt. Col.	396,916	28,807	87,102	2,199	3,910	?	?	?	– –
Florida	5,114,039	5,118,357	3,814,567	40,479	7,595	3,309	?	1,421	197,982
Idaho	135,485	528,345	308,561	10,692	?	3,727	?	?	– –
Iowa	699,001	719,591	661,736	12,329	2,923	0	0	0	– –
Kansas	497,207	852,453	538,359	21,177	0	0	0	0	0
Kentucky	1,640,231	1,580,200	319,168	14,560	2,035	1,029	?	161	334
Louis’na	1,213,875	1,004,125	679,560	14,804	2,281	165	0	885	110,653
Maine	405,087	321,935	362,574	56	45,577	?	?	?	?
Md.	2,252,905	993,862	850,098	16,393	6,054	?	?	?	3,820
Mass.	1,534,549	476,480	2,756,915	19,097	3,793	370	78	145	21,482
Nebraska	356,700	594,276	270,297	18,155	?	?	?	?	957
Nevada	624,501	548,517	492,247	17,269	2,499	81,789	?	?	– –
N. Hamp.	277,720	267,526	324,802	?	?	?	?	?	– –
N. Jersey	2,576,742	1,506,450	2,410,952	21,450	11,735	16,233	?	1,879	30,463
N. M.	599,713	412,978	299,686	13,240	7,288	964	993	?	8,885
N. York	6,173,560	2,709,044	2,797,207	20,504	22,322	?	45,921	1,307	548,482
No. Car.	2,493,127	2,177,187	2,449,268	47,417	?	?	?	?	– –
Okla.	698,280	1,115,994	373,208	17,477	?	?	?	?	– –
Oregon	1,050,663	761,678	953,700	21,812	8,080	3,698	8,646	?	137,924
Penn.	4,026,525	3,420,972	1,232,293	39,760	8,350	?	?	?	– –
Rhode Is.	299,011	99,230	313,444	?	?	?	?	?	– –
So. Dak.	153,830	279,187	140,971	2,576	?	143	?	?	– –
Utah	244,415	847,548	484,969	19,022	2,261	6,196	?	?	60,616
W. Va.	393,798	433,461	290,807	9,099	2,212	133	?	?	– –
Wyo.	45,938	195,919	35,162	2,597	0	729	?	?	– –
TOTAL	48,019,985	35,732,180	34,699,567	710,123	243,845	132,097	56,295	5,856	2,038,314
Percent	39.48%	29.38%	28.53%	.58%	.20%	.11%	.05%	.00+%	1.67%

Figures in the "other" column are: Alaska: Alaskan Independence 18,983, Alliance 26, Moderate 286, Progressive 170, Patriots 171, Veterans 1,322; California: American Independent 715,712, Peace & Freedom 110,576, Common Sense 17,322, Peoples 622, California National 400, American Solidarity 202; Colorado: Approval Voting 4,046, Unity 3,215; Connecticut: Independent Party; Delaware: Independent Party 9,807, Conservative 766, American Delta 604, Socialist Workers 128; Florida: Independent Party 195,333, Socialism & Liberation 1,369, Ecology 1,108, People’s 106, Unity 66; Kentucky: Socialist Workers; Louisiana: Independent Party 110,653; Maryland: Working Class 2,693, Bread & Roses 1,127; Massachusetts: United Independent 20,976, Socialist 1,388, Prohibition 18; Nebraska: Legal Marijuana Now; New Jersey: Conservative 16,104, Socialist 7,810, Natural Law 6,549; New Mexico: Independent American 5,135 Better for America 3,750; New York: Independence 388,779, Conservative 154,674, Women’s Equality 4,468, SAM 561; Oregon: Independent Party 134,996, Progressive 2,928; Utah: Independent American 58,331, United Utah 2,285.

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%).

New Jersey and Virginia held gubernatorial elections on November 2, 2021. In both states, minor party nominees did worse than normal.

New Jersey unofficial results: Democratic 51.23%; Republican 48.00%; Green .32%; Libertarian .30%; Socialist Workers .15%. In past New Jersey gubernatorial elections, the Libertarian Party had polled a higher percentage in 1989, 1997, 2005, 2013, and 2017. The Green Party had polled a higher percentage in 2005, 2013, and 2017. The Socialist Workers Party had polled a higher percentage in 1946, 1985, and 1989.

Virginia official results: Republican 50.57%; Democratic 48.64%; Liberation .70%; miscellaneous write-ins .08%. That was the lowest share of the vote for any minor party or independent candidate who was on the ballot for Governor of Virginia since 1957.

The Alabama Libertarian Party now has approximately 37,000 signatures on its party petition, and has 2,600 on its North Dakota petition. The Green Party is petitioning in Arizona for Yavapai County office, and is petitioning for statewide party status in Missouri, Nevada, New Mexico, and North Carolina. The Constitution Party is petitioning in North Carolina.

The Common Sense Party is doing a registration drive in California, and expects to succeed in time to be qualified for the 2022 election. If it succeeds, it will be the first new qualified party in California since 2011, when Americans Elect qualified.

At local elections on November 2, the Libertarian, Green, Working Families, and SAM Parties all elected at least one member in a partisan election. Also, the Socialist Party won a non-partisan election. The next issue of BAN will have more information.

On November 2, Buffalo, New York Mayor Byron Brown won re-election, even though he was not on the ballot. He defeated the Democratic nominee with write-in votes. He had lost the June 2021 Democratic primary, but used write-ins to state a comeback.

~	MAYOR	PUB ADV.	COMPT.
Dem.	66.14%	67.62%	68.65%
Rep.	28.76%	23.74%	23.35%
Consv	1.14%	5.99%	5.63%
Libt.	.28%	1.31%	1.79%
Soc.	2.44%	no nominee	no nom.
Save	.17%	.33%	.40%
indps.	.57%	.85%	none

New York city elected three partisan citywide officers on November 2: Mayor, Public Advocate, and Comptroller. The table above shows the percentage of the vote for all of the parties that had nominees for those offices. "Consv" = Conservative. "Libt" = Libertarian. "Soc" = Socialism and Liberation. "Save" = Save Our City. The Working Families Party did not participate in these elections.

Although New York city used ranked choice voting for its June 2021 primaries, it did not use RCV for the general election.

The Independent Party of West Virginia has decided not to sue the state over its refusal to recognize that the party is ballot-qualified. West Virginia defines a party as a group that got 1% for Governor, and the party got almost 2% at the last gubernatorial election in 2020, but they were write-in votes. The state says the party didn’t exist when it got those votes, although there is evidence that it did.