THIRD CIRCUIT STRIKES DOWN PENNSYLVANIA BAN ON OUT-OF-STATE CIRCULATORS IN PRIMARIES

DECISION ONLY APPLIES TO CIRCULATORS FROM THE SAME PARTY

On February 24, the Third Circuit issued an opinion in Benezet Consulting v Secretary of Commonwealth of Pennsylvania, 20-2976, concerning the ban on out-of-state circulators for primary petitions. However, the decision only applies to out-of-state petitioners who say they are members of the same party as the candidate for whom they are working.

The decision is by Judge L. Felipe Restrepo, a Obama appointee. It is also signed by Judge Theodore McKee, a Clinton appointee; and Judge Jane Roth, a Bush Jr. appointee. The decision will be published. The lower court had also struck down the law, but restricted the holding to the 2020 election only, which made it effectively meaningless. The Third Circuit decision says the opinion applies to future primary elections.

The decision will be useful in the other pending lawsuits over out-of-state circulators, which are pending in Maine (for initiatives), Montana (for initiatives). It will also help with lawsuits that will soon be filed in New York for candidate petitions, and North Dakota for initiatives.

The reason the new ruling only helps petitioners who say they are in the same party as the party of the candidate they are working for, is that the state says if a petitioner who was not a member of the party could work, that would violate the freedom of association of that political party. In Pennsylvania, only the Democratic and Republican Parties have primaries; a party needs registration of 15% of the state total to qualify for its own primary.

The Pennsylvania ban on out-of-state circulators in general elections had already been struck down in U.S. District Court in 2015, in Green Party of Pennsylvania v Aichele.

On January 19, the Alaska Supreme Court released a two-page order in Kohlhaas v State, the case over the top-four initiative that the voters passed in November 2020. The order says system does not violate the State Constitution, and says the Court will explain later. So far the explanation has not appeared.

Recently, State Supreme Courts in Michigan and Missouri struck down laws that made it very difficult to qualify statewide initiative or referendum petitions.

Michigan: on January 24, the State Supreme Court struck down a 2018 law that says no more than 15% of the signatures submitted could come from a single U.S. House district. This meant that once a certain number of voters from a particular district had signed the petition, any more signatures from the same district are not valid. League of Women Voters of Michigan v Secretary of State, 163711.

Missouri: on February 8, the State Supreme Court struck down a 1997 law that shortened the amount of time for circulation of a statewide referendum petition. No Bans on Choice v Ashcroft, SC98879. Before 1997, such petitions had at least 90 days to circulate. But in 1997, the legislature passed a law saying that the petition couldn’t circulate until the Attorney General and the Secretary of State had chosen the "official ballot title". Sometimes that left as few as fourteen days to collect approximately 100,000 valid signatures. The vote was 5-2.

Florida: on January 21, a federal lawsuit was filed against the new ban on paying circulators on a per-signature basis. Florida Right to Pray Together v Lee, n.d., 4:22cv-33. The lawsuit also challenges the new law requiring that the names and addresses of paid circulators be printed on the initiative petition sheets, and the law requiring paid circulators to register with the Secretary of State before they can work.

Illinois: on February 15, proponents of a statewide initiative filed a lawsuit in state court to win the right to collect electronic signatures. Wagner v White, Cook County Circuit Court, 22CH285.

Mississippi: on February 8, the House passed HC39 by 92-26. It restores the statewide initiative process, which had been invalidated by the State Supreme Court in 2021. The old law was struck down because it had a fatal flaw in its language; it said signatures are needed in all five of the state’s U.S. House districts, but for the last twenty years the state has only had four U.S. House seats. The old initiative process was only to amend the State Constitution, not to propose laws. The new process, as described in the bill, creates an initiative process to amend statutes, but not the Constitution.

Montana: on February 9, the Ninth Circuit heard Pierce v Jacobsen, 21-35173. This is the case over the ban on out-of-state circulators. The lower court had upheld the law. The oral argument went very well for the plaintiffs. The case also challenges the ban on paying circulators-per-signatures, and it is difficult to predict how the court will rule on that. The state said at oral argument that it would be legal for initiative proponents to pay a $10,000 bonus to a circulator who collects at least 10,000 signatures. That concession, of course, makes the ban less restrictive.

Ohio: on February 10, proponents of initiatives asked the U.S. Supreme Court to hear their case. It concerns whether Ohio should have given ballot access relief during the covid-19 health crisis. Thompson v DeWine, 21-1120. The Court will consider whether to hear this case at its March 4 conference.

Bills to ease ballot access restrictions for new or minor parties, or independent candidates, have been introduced in ten states:

Alaska: on January 18, Senator Bill Wielechowski introduced SB 161, which eases the definition of a qualified party. Current law says it is a group with registration equal to 3% of the last vote cast, which is currently 10,821. The bill cuts that to exactly 5,000. Currently the only ballot-qualified parties are Republican, Democratic, and Alaskan Independence. If the bill passed, the Libertarians would also be qualified. The bill had a preliminary hearing in the Senate State Affairs Committee on February 17.

Arizona: on February 14, the Senate Government & Elections Committee passed SB 1460. Current law lets candidates running in primaries use electronic signatures. The bill extends this to independent candidates. Unfortunately, the bill also moves the filing deadline for write-in candidates from 40 days before the election, to 106 days before.

Arizona (2): on February 3, seven Representatives introduced HB 2640, which lowers the number of signatures for candidates running in primaries, and also for independent candidates. The independent candidate petition would drop from 3% of the number of independent voters, to 1.5% of that number. The primary petitions for statewide office would drop from one-fourth of 1% of the registered votesr, to one-eighth of 1%.

Hawaii: on February 22, the Senate Judiciary Committee passed SB 2046. Current law requires petition signers to either show their complete birthday, or the last four digits of their Social Security Number. The bill amends the provision on birthdays, so only the month and day would be required.

Indiana: on January 6, Representative Ryan Dvorak introduced HB 1185, which lowers the number of signatures for an independent candidate, or the nominee of an unqualified party, from 2% of the last vote cast for Secretary of State, to 250 signatures.

Kansas: on February 1, the House Elections Committee introduced HB 2578, which lowers the number of signatures to recognize a new party from 2% of the last gubernatorial vote, to 1%. It also expands the length of time to collect the signatures, from six months, to one year.

New Hampshire: on February 10, the House Election Law Committee defeated both bills that would have eased ballot access. HB 1149 lowered the number of signatures for independent candidates and the nominees of unqualified parties to one-third of the existing rquirements. HB 1197 eased the vote test for party status from 4% to 1%. The vote for both bills was 20-0.

New York: Assemblymember John Salka’s bill to lower the number of signatures for statewide independents and the nominees of unqualified parties, AB 8683, has not made any headway yet, but activists in the state are lobbying.

Oregon: on February 1, the House Rules Committee introduced HB 4044, to ease the definition of a qualified party. It lowers the number of registrations from one-half of 1%, to one-fourth of 1%. The Committee held a hearing on the bill on February 8, but has not yet acted on the bill. The bill was introduced to help the Working Families Party, which depends on its registration to remain on the ballot. It can’t use the alternate 1% vote test, because it invariably nominates Democratic Party nominees, so it doesn’t get credited with any votes of its own.

Tennessee: on January 27, bills were introduced to ease the petition for a new party, and the vote test to remain on. They lower the petition from 2.5% of the last gubernatorial vote, to .5%. They lower the vote test from 5% to 1%. They are SB 2189 and HB 2067. The House bill has a committee hearing on March 2.

Wyoming: HB 152, by Representative Mike Yin, would have eased the definition of a party, from a group that got 2% for certain offices at the last election, to one which got 2% for those same offices at either of the last two elections. It would also have added president to the list of offices that count. But it failed to pass in time.

Nebraska is the only state with non-partisan elections for state legislature. On January 20, Senator Julie Slama introduced LR282 to make the elections partisan. It received a hearing on February 3 but no vote has been taken.

Arizona: SB 1456 would allow independent voters to choose a presidential primary ballot. They can already do that in non-presidential primaries.

Idaho: on February 21 the House passed HB 439. Current law lets a voter join a party as late as primary day, so as to vote in that party’s primary. The bill says voters must have joined a party two months before the primary, in order to vote in its primary. The vote was 36-32. The bill has little impact on the Democratic primary, because Democrats lets independents vote in their primary.

Kentucky: two bills by Representative Buddy Wheatley would somewhat open primaries. HB 193 would ease the deadline by which a voter must have joined a party, from December 31 of the year before the primary, to thirty days before the primary. HB 113 would let independents vote in primaries.

Missouri: SB 907 and HB 1450 would change the state from open to closed primaries, and would put a question about party membership on the registration form.

New Hampshire: HB 1166 would somewhat close primaries. Current law lets independents join a party on primary day and then they can vote in that party’s primary. The bill would say independents must have joined a party at least four months before a primary. It would also say that parties could not nominate anyone who had not been a member for at least six months. It had a committee work session on February 23, which suggests it will advance.

New Jersey: SB 185 would let independents vote in partisan primaries without having to join the party on primary day.

New Mexico: HJR 5, which would have let independents vote in primaries, was defeated in the House Judiciary Committee on February 6.

Mississippi: on February 1, HB 373 was defeated in committee. It would have substantially raised candidate filing fees. Gubernatorial candidates would have needed to pay $3,000.

Pensylvania: HB 2218 would move the primary in presidential years from April to March. This seems to be the only bill in the nation to move a presidential primary date. Usually there are lots of bills on this subject.

South Carolina: on February 23, the House Judiciary Committee passed HB 4919. It bans fusion, the ability of two parties to jointly nominate the same candidate. The bill has 51 co-sponsors (the House has 124 members).

Tennessee: on February 15, the Senate State & Local Government Committee passed SB2616, an odd bill that says political parties may not nominate anyone for congress who has not voted in the last three presidential elections in the state. The bill violates the U.S. Supreme Court ruling U.S. Term Limits v Thornton, which says that states cannot add to the constitutional qualifications for Congress.

California: Assemblyman Patrick O’Donnell (D-Long Beach) has introduced AB 2808, which would prohibit any city or county from using ranked choice voting for its own elections.

Florida: SB 524 and HB 7061 prohibit any city or county from using ranked choice voting for its own elections. Both bills have passed all committees and are ready for floor votes.

Tennessee: SB 1820 and HB 1868 prohibit any local government from using ranked choice voting. The identical bills have passed in both chambers but the Governor hasn’t signed it yet.

On February 1, the Illinois Libertarian Party filed a federal ballot access lawsuit on whether the party can nominate candidates for Cook County Commission in its Cook County primary. The party is ballot-qualified in Cook County for the executive offices, because it received more than 5% of the vote in 2020 for State’s Attorney. But the elections office says that does not entitle the party to nominate for the County Commission races. Libertarian Party of Illinois v Yarbrough, n.d., 1:22cv-578.

In 1971 the U.S. Supreme Court ruled in Jenness v Fortson that Georgia’s ballot access laws are constitutional. At the time Georgia required a separate petition of 5% of the number of registered voters for each candidate who was not the nominee of a party that had polled 20% of the vote for President in the entire nation, or 20% for Governor.

The chart below shows the number of signatures that would be required in each state, if each state had a law like Georgia’s old law. For 2022, for statewide office, if those laws existed in every state, a new party would need 10,551,597 signatures to run for statewide office in all states. Furthermore a separate petition would be required for each candidate.

The chart also shows that in reality, a new party could place a nominee on the ballot in 2022 for a statewide office with 541,078 signatures. The chart lists the easier method in each state, so in some states it is the independent petition, not the petition for a new party.

It is because of Jenness v Fortson that the Eleventh Circuit last month upheld the Georgia law relating to U.S. House candidates, in the Libertarian Party Cowen lawsuit. On February 23 the party filed a request for rehearing.

State	2020 Registration Total	Actual 2022 Requirement	5% of Reg. Total
Alabama	3,622,771	51,588	181,139
Alaska	594,474	0	29,724
Arizona	4,281,152	31,686	214,058
Arkansas	1,818,682	10,000	90,935
California	22.047,448	0	1,102,372
Colorado	3,647,180	8,000	182,359
Connecticut	2,263,958	7,500	113,198
Delaware	735,293	755	36,765
Florida	14,441,869	0	722,094
Georgia	7,236,600	64,354	361,830
Hawaii	832,466	833	41,623
Idaho	1,010,991	1,000	50,550
Illinois	8,364,099	25,000	418,205
Indiana	4,751,370	44,935	237,569
Iowa	2,056,085	3,500	102,805
Kansas	1,918,983	5,000	95,950
Kentucky	3,565,428	5,000	178,271
Louisiana	3,054,334	0	152,717
Maine	1,135,229	4,000	56,762
Maryland	4,180,787	10,000	209,040
Massachusetts	4,812,909	10,000	240,646
Michigan	7,151,051	12,000	357,553
Minnesota	3,588,299	2,000	179,415
Mississippi	1,985,928	0	99,297
Missouri	4,318,758	10,000	215,938
Montana	752,538	5,000	37,627
Nebraska	1,252,089	2,500	62,605
Nevada	1,865,551	250	93,278
New Hampshire	1,119,232	3,000	55,962
New Jersey	6,486,299	800	324,315
New Mexico	1,350,181	3,483	67,510
New York	12,363,072	45,000	618,154
North Carolina	7,288,232	13,757	364,412
North Dakota	429,000	1,000	21,450
Ohio	8,073,829	5,000	403,692
Oklahoma	2,206,208	0	110,311
Oregon	2,924,292	23,737	146,215
Pennsylvania	8,897,739	5,000	444,887
Rhode Island	795,212	1,000	39,671
South Carolina	3,513,225	10,000	175,662
South Dakota	569,805	3,393	28,491
Tennessee	4,261,137	25	213,057
Texas	15,279,870	83,435	763,994
Utah	1,620,561	1,000	81,029
Vermont	497,835	20	24,892
Virginia	6,002,778	11,000	300,139
Washington	4,892,871.	0	244,644
West Virginia	1,251,590	7,614	62,579
Wisconsin	3,684,726	2,000	184,237
Wyoming	239,257	5,418	11,963
TOTAL	211,033,273	541,078	10,551,597

The middle column shows how many signatures are needed in 2022 to get a new or previously unqualified party, or an independent candidate, on the ballot for statewide office (using the easiest method).

STATE	REQUIREMENTS		SIGNATURES OR REGIS. OBTAINED				DEADLINES
	FULL PARTY	CANDIDATE	LIB’T	GREEN	CONSTI	PEOPLES	Party Due	Indp. Due
Ala.	51,588	51,588	*53,000	0	0	0	May 24	May 24
Alaska	(reg) 10,821	pay fee	*(rg) 6,961	*(rg) 1,506	*(rg) 703	0	May 3	June 1
Ariz.	31,686	(est) #40,670	already on	0	0	0	Nov 25 ‘21	May 4
Ark.	10,000	10,000	already on	0	0	0	Dec 24 ‘21	May 2
Calif.	(reg) *72,618	65 + fee	already on	already on	*(rg) 172	*(rg) 654	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	*0	*0	– – –	Aug. 10
Del.	*(reg) 755	*7,549	already on	*733	*(rg) 266	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	*already on	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. 24	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	*#3,500	*finished	0	0	0	– – –	in court
Kansas	21,102	5,000	already on	*0	0	0	June 1	Aug. 1
Ky.	no procedure	#5,000	*0	*0	*0	*0	– – –	Aug. 9
La.	(reg) 1,000	#pay fee	already on	already on	(rg) 267	0	Aug. 19	Aug. 19
Maine	*(reg) 5,000	#4,000	*already on	already on	0	*(rg) 100	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	*12,000	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	*2,100	already on	*3,000	July 25	July 25
Mont.	5,000	#16,959	already on	*in court	0	0	*Feb. 4	May 31
Nebr.	6,980	4,000	already on	0	0	0	Aug. 1	Sep. 1
Nev.	13,557	250	already on	*(rg) 2,499	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	#1,300	0	0	0	0	– – –	June 7
N. M.	3,483	10,260	already on	*2,300	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	*6,000	*1,500	0	May 17	March 8
No. Dak.	7,000	1,000	*2,500	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	Jan 31	Aug. 18
Virginia	no procedure	#11,000	*0	*0	*0	*0	– – –	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	#7,614	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			*34	15	13	1	~

#partisan label permitted. "(rg.) = registered members.
*change since Sep. 1 2021 BAN.
NJ, Va, & WV have no statewide races up in 2022, so requirement refers to full slate for US House.

As of the evening of February 24, few minor party websites had posted any statement concerning the invasion of Ukraine by Russia. Exceptions are the websites of the Party for Socialism and Liberation, and the Peace & Freedom Party. Both of them mildly criticize Russia but put most of the blame for the conflict on the United States and the other nations in NATO. By contrast, the website of the European Green Parties had posted a strong statement of support for Ukraine.

It is likely that other minor party websites will soon have statements.

On February 20, the Arkansas Libertarian Party held its state convention and nominated 39 candidates for the state legislature. This is the highest number of legislative candidates any Arkansas party, other than the Republican and Democratic Parties, has nominated since the 1890’s. The previous recent high had been the twelve candidates the Libertarians ran in 2018.

Ballot access for minor parties was very easy in Arkansas before 1971. Any party could be on the ballot, just by holding a convention. Yet for some reason minor parties in the early part of the twentieth century ran very few candidates in Arkansas.

On February 16, the Wyoming House speaker allowed the Libertarian Party to form a caucus, even though it has only one member. Generally states don’t allow parties with only a single member to form a caucus. At one point the New Hampshire House did not permit the Libertarian Party to have a recognized caucus at a time when the party had two members in the House.

On February 4, the Republican National Committee, meeting in Salt Lake City, gave preliminary approval to a rule change. It bans the party’s presidential nominee in 2024 from appearing on the general election debates sponsored by the Commission on Presidential Debates. However, the party could always change its mind at its summer 2022 meeting. Some observers feel the party’s real goal is to force the Commission to give the party more control over the rules, especially the choice of moderators.

On February 18, former U.S. Senator John Danforth, a Republican, said he hopes an independent is elected to the U.S. Senate from Missouri this year.

Evan McMullin, independent candidate for U.S. Senate in Utah this year, has raised over $1,000,000 in the preceding three months.

During the last week of January, the Maine Secretary of State sent letters to 5,830 voters who had been registered Libertarians until December 2018, when election officials had switched them all to independents, without asking. The letter informs the voters that a federal court had determined that it was unlawful for election officials to have erased their Libertarian registration. The letter asks the voters if they want to be again listed as Libertarians, and includes a postage-paid envelope.