GREEN PARTY SUES INDIANA OVER BALLOT ACCESS

On March 17, the Green Party sued Indiana over its restrictive petition requirement for independent candidates, and the nominees of unqualified parties, to get on the ballot. Indiana Green Party v Sullivan, s.d., 1:22cv-518. The case is assigned to U.S. District Court Judge James R. Sweeney, a Trump appointee.

Indiana requires more signatures for president, as a percentage of the last presidential vote, than any state in the nation (when each state is compared using the easiest method to get on the ballot). See the chart on page five. For 2022, it requires 44,935, which is 2% of the 2018 vote for Secretary of State.

It is impossible to petition in Indiana until the group has chosen a nominee. By contrast, in 39 states, a group can begin to petition (or otherwise show support, such as with a registration drive) before it has chosen a nominee. And Indiana has the sixth earliest petition deadline for president, when the later method is compared.

The existing requirement was passed in 1980, effective 1984. The 1980 bill quadrupled the petition requirement from one-half of 1% of the last vote for Secretary of State, to 2%. The bill also quadrupled the vote test for a party to stay on, from one-half of 1% to 2%. The vote test only applies to Secretary of State, which is elected in midterm years. Because there is no vote test in presidential years, Indiana is the only state in which it is impossible for a group to become a qualified party during a presidential election year.

Ralph Nader placed third in the nation in the presidential elections of 2000, 2004, and 2008. Indiana is one of only four states that never printed his name on the ballot.

The other three states in which he never qualified have eased their laws since Nader last ran. They are Georgia (where a court lowered the petition to 7,500 signatures), North Carolina (where the legislature eased the petition) and Oklahoma (where the legislature eliminated the petition for presidential candidates who pay a fee).

Besides the Green Party, other minor parties that have never got on the statewide Indiana ballot, but which have qualified in most states, are the Constitution Party, Americans Elect, and the Natural Law Party. Significant independent presidential candidates who couldn’t qualify in Indiana were Evan McMullin in 2016, and Eugene McCarthy in 1976, even though back in 1976 the requirement was only one-fourth as difficult as it is today. Another significant presidential candidate who failed, even under the old requirement, was Congressman John Schmitz, American Party candidate who placed third in the nation in 1972.

Indiana Legislature Refuses to Ease the Requirement

For six years, bills have been introduced in the legislature to ease the requirement, but none of them passed. The bills have been:

• 2022: HB 1185
• 2021: HB 1130
• 2020: SB 106
• 2019: SB 571
• 2018: SB 328
• 2017: SB 418

Only two of the bills made any headway. The 2018 and 2019 bills passed out of the Senate Elections Committee, but no further. The 2018 bill was not brought up on the floor because the sponsor was afraid it would lose. In 2019 it lost on the floor by 16-31.

A few bills to improve ballot access are moving in state legislatures, and one has already passed:

Alaska: on March 18, the Senate Judiciary Committee passed SB 161, which eases the definition of a qualified party. Existing law requires it to have registration of 3% of the last vote cast, which is currently 10,821 members. The bill changes that to exactly 5,000. After the 2030 census, that figure would be increased in proportion to the growth in population, rounded off to the nearest 500. So, starting in 2032, the requirement would likely be 5,500. If the bill passes, the Libertarian Party will be back on the ballot.

Arizona: on March 14, the Senate passed SB 1460 by 17-12. It lets independent candidates use electronic signatures. Currently primary candidates can use electronic signatures, but petitions for independent candidates and to qualify a new party cannot.

Hawaii: on March 8, the Senate passed SB 2046 by 24-1. It somewhat eases the petition to create a qualified party. Currently the petition asks signers for their birthday. The bill amends the birthday requirement; only the month and day, but not the year, would be needed.

Oregon: on March 3, the legislature passed SB 1527. It lowers the registration requirement for a party to remain qualified from one-half of 1%, to one-fourth of 1%. Assuming the Governor signs the bill, the Working Families Party will continue to be ballot-qualified. Parties also remain qualified if they poll 1% of the vote for a statewide office at either of the last two elections.

On March 1, U.S. District Court Judge Robert Pitman, an Obama appointee, refused to enjoin the new Texas law that requires candidates seeking a nomination at a party convention to have paid a filing fee to the government. Bilyeu v Scott, w.d., 1:21cv-1089. The fees are quite high.

However, the judge hinted that he might eventually find the law unconstitutional on equal protection grounds, because the law requires fees paid by convention parties (which are minor parties) to be paid to the government. But filing fees paid by Democrats and Republicans to get on their party’s primary ballot, go to the party.

The ruling says that the Constitution requires equal treatment for all candidates, and therefore since primary candidates pay filing fees, it is just that convention candidates must also pay them. This statement is utterly incorrect. The U.S. Supreme Court has said that the Constitution does not require that all candidates be treated equally. If it did, then there wouldn’t be any basis for letting Republicans and Democrats run for office with no petition, while requiring other candidates to submit difficult petitions. In Jenness v Fortson, the Supreme Court explicitly said that the Constitution does not require equal treatment.

The ruling claims to be based on precedent, and yet it doesn’t mention either of the two U.S. Supreme Court rulings on filing fees. If Judge Pitman had studied them, his ruling probably would be different. The Supreme Court ruling Lubin v Panish, 424 U.S. 709 (1974) says that filing fees are unconstitutional unless they are absolutely needed to prevent ballots from being too crowded. The Court said a crowded ballot is one with a dozen or two candidates for the same office. Lubin also says that it is hoped that voters find a candidate on the ballot whose ideas match their own ideas.

Obviously, the new Texas filing fees for convention parties are not needed to prevent crowded ballots. Convention parties don’t have ballots; there is nothing to be "crowded". As for as the general election, Texas has uncrowded ballots because the petition requirements for independent candidates, and minor parties, are extremely difficult. No statewide petition for either independents or minor parties has succeeded in Texas since 2010.

The only precedents mentioned in Judge Pitman’s rulings are cases that don’t involve filing fees.

The chart on page 4 lists all the states that have candidate filing fees. It also shows which states expect candidates nominated at conventions to pay the fees, and which states require independent candidates to pay filing fees. Texas does not require independent candidates to pay filing fees, which alone shows that the so-called principle that all candidates must be treated equally is not enshrined in Texas law.

On February 14, Utah Governor Gary Herbert signed SB 170. It moves the petition deadline for all independent candidates, even presidential candidates, to January, effective in 2024. For 2022, it provides for a March 4 deadline, so it is already too late for independent candidates to run this year.

The U.S. Supreme Court ruled in Anderson v Celebrezze in 1983 that early petition deadlines for independent presidential candidates are unconstitutional, no matter how few signatures are required. Generally lower courts have extended that ruling to independent candidates for office other than president. The new Utah law clearly violates the Constitution.

In 1984, when Utah had an April petition deadline for independent presidential candidates, Lyndon LaRouche, an independent presidential candidate, sued Utah, and the state admitted that its April deadline could not stand. It moved the deadline to September. It seems the current Utah legislature had no memory of why it had done that.

On March 4, U.S. District Court Judge Robert Gettleman, a Clinton appointee, issued an injunction permitting the Libertarian Party to nominate candidates in its Cook County primary for County Commission. Libertarian Party of Illinois v Yarbrough, n.d., 1:22cv-578. Election officials had taken the position that even though the Libertarian Party is ballot-qualified in Cook County, it was only ballot-qualified for county executive office, not County Commission. But the judge interpreted the law favorably to the party. The state did not appeal.

On March 1, the Montana Secretary of State signed a settlement of the Green Party’s ballot access lawsuit. The Ninth Circuit had ruled in favor of the Green Party last year. It had invalidated the unequal distribution requirement in the law regulating the petition for party recognition. The case, which had been filed in 2018, had lost in the U.S. District Court, and so the party was kept off the ballot in both 2018 and 2020 due to an unconstitutional law.

The Secretary of State agreed to recognize the party for the 2022 election, and to let candidates file for a Green Party primary. Two legislative candidates did then file. However, the U.S. District Court still hasn’t signed off on the agreement.

The Pennsylvania signature requirements for independent candidates, and the nominees of unqualified parties, for U.S. House, are significantly lower in 2022 than they were in 2020. The Elections Office released the requirements on March 16. They range from 1,000 signatures to 2,343 signatures. To run a full slate would require 30,821 signatures. By contrast, in 2020 a full slate needed 62,979. It appears that in years after a census, the state calculates the signature requirements based on the prior odd year (2021) when the turnout is much lower.

Idaho: HB 439, to end the practice of letting voters join a party on primary day, has made no headway in the Senate and is very unlikely to pass before the legislature adjourns.

New Hampshire: HB 1166, a bill similar to the Idaho bill mentioned above, was defeated on March 18.

Wyoming: SF 97, a bill similar to the ones mentioned above, lost in a House committee on March 7.

Similar bills in other states have made no headway.

Fordham Law Review, November 2021: Symposium Papers Concerning the 2020 Presidential Election by ten authors, 340 pages.

The November 2021 issue of the Fordham Law Review, a quarterly publication, is entirely devoted to scholarly articles about the 2020 presidential election. The ten chapters will be of interest to many readers of B.A.N.

Any subscriber may obtain a free copy of the paperback book containing the papers, upon request to me. I have 45 copies; obviously the offer is "first come, first serve." Also the publication may be read free online at the website of the Review. Non-subscribers may also obtain a copy if they remit $5 to pay for postage.

The papers and their authors are:

Voting as Exclusion, by Ava Ayers, which explores the idea that the ability to register to vote is deeply symbolic that the registrant "belongs" in our society.

The Electoral College: Time for a Change? By John D. Feerick. Although this is a contentious subject and most people already have an opinion about the electoral college, this 27-page article contains a great deal of useful detail that is not generally known nor easy to find.

The Illiberalization of American Election Law: A Study in Democratic Deconsolidation, by James A. Gardner. This 44-page article justly criticizes the U.S. Supreme Court’s behavior on voting rights during the last few decades. The concluding sentence is, "By continually narrowing the scope of considerations deemed relevant to the constitutionalization of democracy, the Supreme Court has warped the soul of a republican constitution, transforming it into exactly what it is not and was never meant to be: a deeply illiberal document that empowers the powerful and subordinates the weak."

Election Observation, by Rebecca Green. Every state has laws regulating who may observe vote-casting and vote-counting, but in many states, according to the article, the statutes are not up-to-date. The article suggests that much of the discord and controversy following the 2020 election would have be ameliorated if state procedures worked better.

The Independent State Legislature Doctrine, by Michael T. Morley. This is the theory that Article One of the Constitution does not allow any branch of state government, other than the legislature, to regulate election laws for federal office. There are still several pending lawsuits around this issue.

Reducing Election Litigation, by Derek T. Muller. The article documents the very large increase in constitutional election law litigation, explains why the increase in litigation harms the nation, and makes suggestions for solving the problem. One of those suggestions is for more federal rules for federal elections. For example, if Congress had ever passed bills regulating ballot access barriers, as it considered doing between 1985 and 2000, that alone would greatly reduce the amount of litigation (although the article does not specifically mention the federal bills on ballot access).

Reforms for Presidential Candidate Death & Disability: from the Convention to Inauguration Day, by John Rogan. This fascinating subject is amazingly complex. I had never thought about the point that cabinet members are in the line of presidential succession, yet on Inauguration Day, and for some weeks afterward, there are no cabinet members who have been confirmed by the Senate.

Compulsory Voting and Black Citizenship, by Ekow N. Yankah. This author makes a daring attempt to persuade readers of the merits of making voting compulsory.

Also, there is a chapter by me titled "How States can Avoid Overcrowded Ballots but Still Protect Voter Choice."It uses history to show that if a state required more than 5,000 signatures, it never had more than eight candidates for a single office, with only three exceptions, all from New York; and even New York never had more than ten.

~	Democratic	Republican	Convention parties	independents	Elec. code reference
Alabama	3,480	3,480	No fee	No fee	17-13-47
Alaska	100	100	– –	100	15.25.050
Arkansas	2,500	15,000	250	No fee	7-7-301(a)
California	1,740	1,740	– –	1,740	8103
Delaware	3,480	3,480	No fee	No fee	3103
Florida	10,440	10,440	– –	6,960	99.061
Georgia	5,220	5,220	5,220	5,220	21-2-131
Hawaii	75	75	– –	75	12-5, 12-6
Idaho	300	300	300	300	34-604
Kansas	1,760	1,760	20	20	25-206
Kentucky	500	500	500	500	118.255
Louisiana	900	900	– –	900	Tit. 18, 464
Maryland	100	100	100	100	Art. 33, 5-401
Minnesota	300	300	– –	300	204B.11
Mississippi	500	500	– –	500	23-15-297
Missouri	300	300	300	300	115.357
Montana	1,740	1,740	– –	1,740	13-10-202
Nebraska	1,740	1,740	1,740	1,740	32-608
Nevada	300	300	300	300	293.193
New Hamp.	50	50	50	50	655:19
No. Carolina	1,740	1,740	1,740	1,740	163-107
Ohio	85	85	85	85	3513.05
Oklahoma	1,000	1,000	– –	1,000	5-112
Oregon	100	100	No fee	No fee	249.056
Pennsylvania	150	150	150	150	2872.1
So. Carolina	3,480	3,480	No fee	No fee	7-13-40
Texas	3,125	3,125	3,125	No fee	172.024
Utah	485	485	– –	485	20A-9-201
Virginia	3,480	3,480	No fee	No fee	24.2-521
Washington	1,740	1,740	– –	1,740	29.18.050
W. Virginia	1,740	1,740	1,740	1,740	3-5-8
Wyoming	200	200	200	200	22-5-208

States not named above don’t have filing fees for U.S. House candidates. In the "convention parties" column, a dash means that there is no provision in state law for any qualified party to nominate by convention; instead all qualified parties nominate by primary, or else parties don’t have nominees. Only newly-qualifying parties may nominate by convention in Alabama, Arkansas, Idaho, Missouri, Nebraska, New Hampshire, North Carolina, and Ohio.

State	Number Sigs.	Percent	Code Reference	Formula
Colo	0	.00%	1-4-801	just pay filing fee
La.	0	.00%	Title 18, sec. 465C	just pay filing fee
Okla..	0	.00%	Title 26, 10-101	just pay filing fee
Fla.	0	.00%	97.021, 103.021	submit officers, get FEC recognition
Vt.	20	.00+%	Title 17, sec. 2313, 2318	submit town committees from 10 towns
Tenn.	275	.01%	2-505	25 signatures x eleven electors
N.J.	800	.02%	19:13-5	number stated in law
Wash.	1,000	.02%	29A.20.121(2)	number stated in law
Minn.	2,000	.06%	204B.08	number stated in law
Wis.	2,000	.06%	Title 2, sec. 8.20(4)	number stated in law
Pa.	5,000	.07%	Consti. Pty of Pa v Cortes	number in court settlement
Utah	1,000	.07%	20-3-38	number stated in law
Miss.	1,000	.08%	23-15-359	number stated in law
Ohio	5,000	.08%	3513.257	number stated in law
Va.	5,000	.11%	24.2-532	number stated in law
Idaho	1,000	.12%	34-708A	number stated in law
Hi.	757	.13%	Title 2, sec. 11-62	one-tenth of 1% of voters, Nov 2022
Del.	*(reg.) 750	.14%	Title 15, sec. 3001	One-tenth of 1% of voters, Dec 2023
Ga.	7,500	.15%	Green Party of Ga. v Kemp	number from 2016 court order
Ark.	5,000	.16%	7-302(5)(B)	number stated in law
R.I.	1,000	.19%	17-14-7	number stated in law
Iowa	3,500	.21%	Title 4, sec. 45.1	number stated in law
Ala.	5,000	.22%	17-19-2(a)	number stated in law
Mich.	12,000	.22%	Graveline v Johnson	number from 2018 court order
Ky.	5,000	.23%	Title 10, sec. 118.315(2)	number stated in law
N.C.	13,757	.25%	163-96(2)	.25% of 2020 gub. vote
Neb.	2,500	.26%	32-504(2)(c)	number stated in law
Mass.	10,000	.28%	Chapter 53, sec. 6	number stated in law
Md.	10,000	.33%	elec. law 5-703(e)	number stated in law
Mo.	10,000	.33%	Title 9, sec. 115.321	number stated in law
Ks.	5,000	.36%	25-303	number stated in law
N.H.	3,000	.37%	Title 4, sec. 655:42	number stated in law
S.C.	10,000	.40%	7-9-10	number stated in law
Ill.	25,000	.41%	10 ILCS 5/10-2	number stated in law
Ct.	7,500	.41%	9-453(d)	number stated in law
N.M.	*3,843	.42%	1-8-2.B & 1-7-2.A	one-half of 1% of 2022 gub. vote
Me.	4,000	.49%	Title 21, sec. 494.5	number stated in law
N.Y.	45,000	..52%	Chap. 17, sec. 6-142	number stated in law
Tx.	*83,435	.74%	Elec. code 181.005	1% of 2022 gub. vote
S.D.	*3,393	.80%	12-7-1	1% of 2022 gub. vote
Mt.	5,000	.83%	13-10-601	number stated in law
Ariz.	*31,685	.94%	16-802	1.333% of 2022 gub. vote
Nev.	*13,557	.96%	Title 24, sec. 293.1715	1% of 2022 U.S. House vote
Ore.	23,757	1.00%	249.735	1% of 2020 pres. vote
Alas.	3,614	1.00%	15.30.025	1% of 2020 pres. vote
N.D.	4,000	1.10%	16.1-12-02	number stated in law
Calif.	*196,964	1.13%	Elec. code 8400	1% of reg. voters as of Oct. 2022
Wyo.	*4,018	1.45%	22-4-402(d)	2% of 2022 U.S. House vote
Ind.	*44,934	1.48%	3-8-6-3	2% of 2022 Sec. of State vote

This chart shows that Indiana requires the highest percentage of any state, for presidential candidates running outside the major parties. * means estimate based on 2020, because exact 2024 number can’t be known until Nov. 2022 or later. The percentage is the number of signatures divided by that state’s 2020 presidential vote cast.

On March 22, New York held a special legislative election to fill the vacancy in the 43^rd district Assembly seat. The results: Democrat Brian Cunningham 62.20%; Working Families nominee Jelanie Deshong 34.48%; Republican-Conservative nominee Mesidor Azor 2.93%.

Brian Moore has filed in the Florida Green Party primary to run for Governor. He is unopposed for the nomination. He will be the first Green Party nominee for statewide office in the state. The party has been on the ballot starting in 2000 but never before had any statewide candidates, other than presidential candidates. This is partly because the filing fee is so high. Moore must pay a fee of $8,050.86. Moore will be the first gubernatorial nominee of a "left" party to run in Florida since 1920.

Filing for Alabama primaries has closed. No Democcrat filed to run for seven partisan statewide offices: Lieutenant Governor, Treasurer, Auditor, Agriculture Commissioner, Justice of the Supreme Court place six, Public Service Commission place one, and Public Service Commission place two. It is likely the Libertarian Party will be the first third party on the ballot since 2002, because the party has already collected 62,000 signatures to meet the requirement of 51,000, and is collecting more signatures. The Libertarians are likely to run nominees for most or all of these seven offices, and have a chance to poll 20% for at least one of them, which will give the party qualified status for 2024. The definition of a qualified party is one that polled 20% for any statewide office.

The Republican National Committee has determined that the party’s 2024 presidential convention will be in either Milwaukee or Nashville. No other party so far has made any decisions about its convention location.

Filing for the Nebraska primaries has closed. There are two statewide races in which the Legal Marijuana Now Party will provide the only opposition to the Republican nominees. The two offices are Attorney General and Auditor. No one filed in the Democratic primary, nor the Libertarian primary, for those offices.

North Dakota: Shelley Lenz, who was the Democratic Party nominee for Governor in 2020, will run for the State Senate in 2022 as an independent candidate.

Washington: Chris Vinton, a former state chair of the Republican Party, and the Republican Party choice for U.S. Senate in 2016, will run for the State Senate this year as an independent, against an incumbent Republican.

Two candidatess filed for Governor in the Idaho Libertarian Party primary. Thus the state will print up Libertarian primary ballots. Idaho generally doesn’t print up primary ballots for parties with no contested races. It is believed this will be the first minor party statewide primary held in Idaho since 1926.

The Forward Party, founded by Andrew Yang, has said it will petition to place at least one nominee on the Minnesota ballot. Cory Hepola will be the gubernatorial nominee. The petitioning period only lasts two weeks, in May. The petition requirement is 2,000.

Burlington, Vermont, held a partisan election for city office on March 1. Six seats were won by Progressive Party nominees, so the party maintained the same strength it already had. It has half the seats.