FEDERAL COURT RULING STRIKES BLOW AT NEW JERSEY’S DISCRIMINATORY BALLOT FORMAT

On May 31, U.S. District Court Judge Zahid Quraishi, a Biden appointee, issued a ruling in Conforti v Hanlon, 3:20cv-8267. This is the case that challenges New Jersey’s discriminatory ballot format in primaries. Although the ruling does not strike down the New Jersey law, it rejects the state’s request to dismiss the lawsuit, and suggests that it will be struck down.

New Jersey counties set their own ballot format, but all but two counties generally use a discriminatory ballot access for both primaries and general elections. The plaintiffs were primary candidates for Congress and local office in the primary of June 2020. They were all given bad spots on the ballot. The Ocean County ballot below is typical.

Almost all New Jersey counties have used discriminatory ballot format in both the primary and the general since at least 1942. There have been numerous attempts in the last eighty years to persuade courts to rule them unconstitutional, but until, all those lawsuits have failed.

The Conservative Party of New Jersey filed the first lawsuit in 1957, Perry v Giuliano, 135 A 2d 24. The primary ballot format was first challenged in 1985, in Quaaremba v Allen, 334 A 2d 321. A new reincarnation of the Conservative Party sued in 1999, New Jersey Conservative Party v Farmer, 324 NJ Super 451. The primary format was attacked again in 2005, Schundler v Donovan, 872 A 2d 1902. A minor party called the Democratic-Republican Party tried federal court in 2012, Democratic-Republican Organization of New Jersey v Guadagno, 900 F.Supp.2d 447, affirmed, 700 F.3d 130 (Third Circuit, 2012). None of these cases prevailed.

Judge Quraishi relied on an excellent U.S. Supreme Court decision, Cook v Gralike, 531 U.S. 510 (2001), that struck down a Missouri law that put some congressional candidates at a disadvantage, compared to other candidates. It did that by forcing some candidates to have a ballot label that said, "Disregarded Voters’ Instructions on Term Limits."

The decision was unanimous and said, "The adverse labels handicap candidates at the most crucial stage in the election process…The Missouri law attempts to dictate electoral outcomes." A concurrence by Chief Justice William Rehnquist says, "The result is that the State injects itself into the election process at an absolutely cricital point – the composition of the ballot, which is the last thing the voter sees before he makes his choice – and does so in a way that is not neutral."

Judge Quraishi saye he will apply a level of scrutiny that varies between moderate and severe. Evidence in the case already shows that no other state uses discriminatory ballot format for primaries, and only New York and New Hampshire do so for general elections.

A powerful coalition of good government groups in New Jersey has been working to reform ballot format for four years, and it is possible that the legislature can finally now be persuaded to fix the problem, under the pressure of the lawsuit.

On June 20, California Assemblymember Kevin Kiley (R-Rocklin) introduced ACA 16, which would repeal the top-two system and return to the system in use 2001-2010. Legislative rules do not permit the bill to be heard in committee until July 21.

Kiley is not running for re-election; instead he is running for Congress. His bill is the first bill to repeal the California top-two law since that system went into effect in 2011. His motivation stems from the results of the June 7, 2022 primary in the State Senate race in the Fourth District. The Fourth District is the fourth-most Republican State Senate district in the state, based on registration data. But because six Republicans and only two Democrats ran in the primary, the two Democrats placed first and second. Therefore, the majority party has no one on the November ballot.

This is the fourth time the majority party has been disenfranchised in California because of top-two. The earlier instances were the U.S. House race in 2012, the 76^th Assembly race in 2018, and the 38^th Assembly race in 2020.

The top-two system in both California and Washington has kept all minor party candidates off the general election ballot, except in races in which only one major party ran someone. On June 25, the board of the Coalition for Free & Open Elections (COFOE) endorsed ACA 16.

On June 13. U.S. District Court Judge Allen C. Winsor, a Trump appointee, struck down the Florida law that makes it illegal for anyone outside the state from contributing more than $3,000 to a group that is trying to qualify an initiative. ACLU of Florida v Byrd, n.d., 4:21cv-190.

On June 22, U.S. District Court Judge Tom Barber, a Trump appointee, refused to enjoin the Florida law that says no party may run a candidate who has not been registered into that party for a year before the filing deadline. People’s Party of Florida v Florida Department of State, m.d., 8:22cv-1274.

The People’s Party, which has only been ballot qualified in Florida since September 2021, wanted to run a candidate for Pasco County Commission. Florida does not permit voters to register into a party unless it is ballot-qualified. Therefore, the Florida law, as applied to a new party, prevents a new party from having any candidates in its first year on the ballot.

Judge Barber mentioned the 1986 U.S. Supreme Court decision Tashjian v Republican Party of Connecticut, which says that it would violate freedom of association for a state to tell a party that it can’t nominate a non-member. But he said that case doesn’t apply, without explaining why it doesn’t apply. Instead he relied on Storer v Brown, a 1974 case that upheld a California law saying no one could be an independent candidate who had been a member of a party during the preceding year. But that case did not involve a political party and thus is not relevant to a lawsuit filed by a political party.

Judge Barber did not mention any of the precedents from other jurisdictions that ruled states cannot bar parties from running candidates in their first year on the ballot. They are from the State Supreme Courts of Nevada and New Mexico, and federal courts in Oklahoma and North Carolina.

The decision says that the plaintiff-candidate is always free to be a write-in candidate in the general election, but this is not true, because the deadline to file as a declared write-in had already passed, and also because the Florida duration of membership law even applies to write-in candidates.

On June 13. U.S. District Court Judge John Gerrard, an Obama appointee, enjoined the county distribution requirement for Nebraska statewide initiatives. Eggers v Evnen, 4:22cv-3089. The law requires a substantial amount of signatures from 38 of Nebraska’s 93 counties. The state immediately appealed to the Eighth Circuit, case number 22-2268. There should be a decision from the Eighth Circuit in early July.

Arkansas: on April 13, U.S. District Court Judge James Moody, a Clinton appointee, denied the state’s motion to dismiss Liberty Initiative Fund v Thurston, e.d., 4:21cv-460. The lawsuit was filed to fight state laws that ban out-of-state circulators for initiatives, ban paying on a per-signature basis, and impose a county distribution requirement for statewide initiatives. There are other issues in the lawsuit as well, such as the law requiring paid petitioners to inform state officials of their residence address, every time they move. There will now be a trial.

South Dakota: on June 7, voters defeated Amendment C, which would have changed the state constitution to provide that ballot measures that result in new government spending of at least $10,000,000 need at least 60% of the vote to pass. Only 33% of the voters voted "yes".

On June 16, supporters of the Missouri initiative to eliminate party nominees for all elections except president said that they fear their initiative will not get on the ballot, because it probably doesn’t have enough signatures. No one will know for sure until early August, when the state finishes the validity check.

Alabama: on June 23, U.S. District Court Judge Myron Thompson, a Carter appointee, refused to dismiss the lawsuit Greater Birmingham Ministries v Merrill, m.d., 2:22cv-205. The issue is whether the federal Voting Rights Act requires the state to furnish a free list of voters who have been purged recently. Alabama has a strong policy of charging substantial amounts of money for the list. The state had argued that the Voting Rights Act doesn’t apply because it means "photocopies" of the list, and the list is now electronic.

Alaska: on Saturday, June 25, the State Supreme Court ruled that there should only be three candidates on the special general election for U.S. House that is being held on August 16. Guerin v State, S18457. The law says the top four finishers should appear, and it also says that if one of the top four drops out by 64 days before the election, the fifth-place finisher will go on the ballot. But Al Gross withdrew less than 64 days before the election, so no one can replace him. The ballot will contain two Republicans and one Democrat.

Arizona: on May 2, the Democratic Party dropped its lawsuit on the order of candidates on the ballot, even though it had virtually won the case in the Ninth Circuit in April. Perhaps the party expecdts to win the 2022 gubernatorial election, in which case it will enjoy the top spot on the ballot in the counties in which it wins.

Louisiana: on Sunday, June 12, the Fifth Circuit refused to stay the order of a U.S. District Court that invalidated the U.S. House district boundaries. Robinson v Ardoin, 22-30333. The state is asking the U.S. Supreme Court to let it keep its original districts. The issue is whether the Voting Rights Act requires Louisiana to draw a second black-majority district. The state has six districts and is 33% black.

Michigan: both state courts and a U.S. District Court refused to give any relief to any of the Republican gubernatorial candidates who were removed from the August primary ballot because they didn’t have enough valid signatures. They needed 15,000. Five candidates remain on the Republican ballot. The federal case was Johnson v Michigan Board of State Canvassers, e.d., 2:22cv-11232. The state court of appeals case was Johnson v Board of Canvassers, 361564.

Nevada: on June 8, the State Supreme Court heard Helton v Nevada Voters First, 84110. The issue is whether the initiative for a top-five system should be blocked from the ballot for violating the single-subject rule. The petition is circulating but has not yet submitted any signatures.

New York: on June 20, the state Libertarian Party and the state Green Party asked the Second Circuit to enjoin the ballot access that passed in 2020 and tripled the petition requirement. Libertarian Party of New York v New York, 21-1464. All the statewide gubernatorial petitions this year were challenged off the ballot. The parties’ brief points out that if no relief is given, this will be the first gubernatorial election since 1946 in which only two nominees for Goveror will be on the ballot.

North Carolina: on June 22, an Administrative Law Judge set aside a campaign finance fine of $2,750 that had been levied against the Constitution Party’s 2020 gubernatorial candidate, Al Pisano. The fine was for late filing. The basis for the decision was that the State Board of Elections had failed to follow its own rules. It should have warned Pisano immediately after he was late, but it didn’t.

Pennsylvania: in a rare win in the U.S. Supreme Court for the federal Voting Rights Act, on June 9 the U.S. Supreme Court declined to upset a Third Circuit decision that used the Act to count postal ballots even though the voter had forgotten to add the date on the outer envelope. The part of the Voting Rights Act is the "materiality" provision, which says states may not deny the right to vote "because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under state law to vote in such election." Ritter v Migliori, 21A772. The vote was 6-3; Justices Alito, Thomas and Gorsuch dissented. In the past, the provision has been used to prevent states from invalidating signatures on petitions for trivial reasons.

Tennessee: on June 10, the State Supreme Court removed congressional candidate Bobby Newsom from the Republican ballot. His party had a bylaw saying no one could run who had not voted in the Republican primary in three of the last four elections. He could not comply because he had not lived in Tennessee long enough. The lower court had put him on the ballot on the grounds that the party meeting that disqualified him had not been open to the public, but the State Supreme Court said such meetings don’t need to be open. Newsom v Tennessee Republican Party, M2022-00735.

The chart below shows the last time someone who was not a major party nominee won an election for federal or state office. It shows that no such instance has occurred in New Jersey since 1971. Every other state in the northeast has had such an instance in this century, except Pennsylvania has not had one since 1980. This tends to show that the New Jersey ballot format is harmful to candidates who are not major party nominees.

State	Office	Year	Name	Partisan Ballot Label
Alabama	State Senate	2014	Harri Anne Smith	independent
Alaska	State House	2020	Daniel Ortiz	independent
Arizona	Territorial Delegate	1878	John G. Campbell	independent
Arkansas	State House	2012	Fred Smith	Green
California	Assembly	2020	Chad Mayes	Party preference: none
Colorado	U.S. House	1900	John C. Bell	Peoples
Connecticut	State House	2017	Joshua Hall	Working Families
Delaware	Governor	1854	Peter F. Causey	American
Florida	State Senate	1976	Lori Wilson	unaffiliated
Georgia	State House	2014	E. Culver "Rusty" Kidd	independent
Hawaii	Territorial Delegate	1900	Robert William Wilcox	Home Rule Party
Idaho	State Senate	1926	William A. Shuldberg	Progressive
Illinois	State Senate	2002	James T. Meeks	Honesty & Integrity
Indiana	State House	1914	John Wesley Judkins	Progressive
Iowa	State House	1922	William E. G. Saunders	independent
Kansas	State House	1994	Ellen Samuelson	write-in
Kentucky	State Senate	2006	Robert Leeper	independent
Louisiana	State House	2019	Roy Daryl Adams	Independent Party
Maine	State House	2020	Walter Riseman	independent
Maryland	Delegate	1934	Joseph A. Cantrel	Fusion
Massachusetts	State House	2020	Susannah Whipps	independent
Michigan	U.S. House	1912	Roy O. Woodruff	Progressive
Minnesota	State Senate	2002	Sheila Kiscaden	Independence
Mississippi	State House	2019	Angela Cockerham	independent
Missouri	State House	2011	Tracy McCreery	independent
Montana	State House	2006	Rick Jore	Constitution
Nebraska	State House	1926	Trenmor Cone	Progressive
Nevada	Assembly	1946	Glen C. Norstrom	independent
New Hamp.	State House	2014	David Luneau	independent
New Jersey	Assembly	1971	Anthony Imperiale	For the People
New Mexico	State House	2020	Aileene Barreras	independent
New York	Assembly	2020	Rebecca Seawright	Rise and Unite
North Carolina	State House	2010	Bert Jones	unaffiliated
North Dakota	Secretary of State	2018	Al Jaeger	independent
Ohio	U.S. House	1952	Frazier Reams	independent
Oklahoma	State Senate	1914	George E. Wilson	Socialist
Oregon	State House	1998	Bob Jenson	independent
Pennsylvania	U.S. House	1980	Tom Foglietta	Foglietta Party
Rhode Island	State House	2016	Blake Filippi	independent
South Carolina	State Senate	2012	Katrina Shealy	by petition
South Dakota	State House	2010	Jenna Haggar	independent
Tennessee	State House	2012	Kent Williams	independent
Texas	State House	2016	Laura Thompson	independent
Utah	State House	1956	Clarence Albrecht	independent
Vermont	State Senate	2020	Christopher Pearson	Progressive
Virginia	Delegate	2015	Joseph Morrissey	independent
Washington	State Senate	1922	J. R. "Bob" Oman	Farmer-Labor
West Virginia	State House	1906	Elisha Bias	Prohibition
Wisconsin	Assembly	2010	Bob Ziegelbauer	Independent
Wyoming	State House	2020	Marshall Burt	Libertarian

The petitioning chart entry for Alaska, for the Libertarian column, says "virtually on." The party has more than enough registrations to comply with the new law, but the Governor hasn’t signed it yet.

STATE	REQUIREMENTS		SIGNATURES OR REGIS. OBTAINED				DEADLINES
	FULL PARTY	CAND	LIB’T	GREEN	CONSTI	*SWP	Party Due	Indp. Due
Ala.	51,588	51,588	*already on	*too late	*too late	too late	May 24	May 24
Alaska	(reg) *5,000	pay fee	*virtual on	*too late	*too late	too late	May 3	June 1
Ariz.	31,686	#40,670	already on	*too late	*too late	too late	Nov 25 ‘21	*April 4
Ark.	10,000	10,000	already on	*too late	*too late	too late	Dec 24 ‘21	May 2
Calif.	(reg) 72,618	65 + fee	already on	already on	too late	on primary	Jan. 4	March 11
Colo.	(reg) 1,000	#8,000	already on	already on	already on	0	*April 4	July 14
Conn.	no procedure	#7,500	already on	already on	0	0	– – –	Aug. 10
Del.	(reg) 755	7,549	already on	*737	*262	132	Aug. 23	July 15
D.C.	no procedure	3,000	already on	already on	0	0	– – –	Aug 10
Florida	0	pay fee	already on	already on	already on	too late	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	too late	Feb. 24	June 7
Idaho	17,348	1,000	already on	0	already on	0	Aug. 30	March 11
Illinois	no procedure	#25,000	*24,000	0	0	0	– – –	*July 11
Indiana	no procedure	#44,935	already on	in court	*too late	too late	– – –	June 30
Iowa	no procedure	#3,500	already on	0	0	0	– – –	Aug. 19
Kansas	21,102	5,000	already on	0	0	0	June 1	Aug. 1
Ky.	no procedure	#5,000	*too late	*too late	*too late	too late	– – –	June 7
La.	(reg) 1,000	#pay fee	already on	already on	(rg) 267	0	*July 22	*July 22
Maine	(reg) 5,000	#4,000	already on	already on	*too late	too late	Jan. 3	June 1
Md.	10,000	10,000	already on	already on	0	0	Aug. 1	Aug. 1
Mass.	(est) (reg) 45,500	#10,000	*5,000	*4,000	0	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	*too late	*too late	*too late	*already on	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	*6,200	already on		*August 1	*August 1
Mont.	5,000	#16,959	already on	already on	*too late	too late	Feb. 4	May 31
Nebr.	6,980	4,000	already on	0	0	0	Aug. 1	Sep. 1
Nev.	13,557	250	already on	*too late	already on	0	April 27	May 13
N. Hamp.	23,798	#3,000	*3,000	0	0	0	Aug. 9	Aug. 9
N.J.	no procedure	*#600	*already on	*too late	*too late	*already on	– – –	June 7
N. M.	3,483	*13,932	already on	*finished	*too late	too late	June 30	*June 30
N.Y.	no procedure	#45,000	*in court	*in court	*too late	too late	– – –	May 31
No. Car.	13,757	82,542	already on	*finished	*too late	too late	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	0	July 6	May 2
Okla.	35,592	pay fee	already on	*too late	*too late	too late	Feb. 28	April 15
Oregon	27,960	23,737	already on	already on	already on	0	Aug. 30	Aug. 30
Penn.	no procedure	5,000	*9,000	*2,000	0	0	– – –	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	*too late	*too late	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	*in court	too late	May 15	June 23
Utah	2,000	#1,000	already on	too late	already on	too late	Nov 30 ‘21	*March 4
Vermont	be organized	#500	already on	0	0	0	Jan 31	*Aug. 4
Virginia	no procedure	#11,000	*too late	*too late	*too late	too late	– – –	June 21
Wash.	no procedure	#pay fee	*on prim	*too late	*too late	on prim	– – –	May 20
West Va.	no procedure	#7,614	already on	already on	0	0	– – –	Aug. 1
Wisc.	10,000	#2,000	already on	*already on	already on	too late	April 1	June 1
Wyo.	5,418	5,418	already on	0	already on	0	June 1	Aug. 28
TOTAL STATES ON			*37	*17	13	4	~

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

During the latter part of June, a Democratic Party group has obtained the list of persons who signed the North Carolina Green Party petition, and the signers are getting phone calls and text messages urging them to remove their signatures from the petition. The requirement is 10,000 signatures. The county election boards have already verified 16,000 signatures, out of the 22,000 signatures that the party gathered. The law does not have any provision for signers to remove their signatures. The State Board will vote on July 1 whether to put the party on the ballot.

One of the text messages, "If the Green Party is on the ballot in 2022 and 2024, it will take votes away from the Democrats, giving Republicans a huge advantage that will help them win North Carolina in 2022 and 2024." Another text message asks if the person really signed the petition, and gives these choices for a response: "Yes, I did sign"; "No, I did not sign"; "Unsure"; "Wrong Number."

Two factions of the Libertarian Party are circulating in New Hampshire, for Governor and U.S. Senator. Under a 2010 ruling of the First Circuit, there is no means for an unqualified party to obtain rights to its name, and in 2008, two Libertarians with that label appeared on the ballot as candidates for president, Bob Barr and George Phillies.

During April 2022, Tennessee State House member John Mark Windle filed for re-election as an independent candidate. He had been elected as a Democrat continuously starting in 1990. He is a former Majority Leader of the House. No Democrat is running against him.

California held its top-two primary on June 7. The only qualified minor parties with statewide candidates were the Peace & Freedom Party, and the Green Party. They both polled better this year than they had in 2018. The Peace & Freedom Party polled 3.1% for Treasurer, 2.3% for Insurance Commissioner, and 2.1% for Lieutenant Governor. A primary vote of 2% keeps a party on the ballot for the next four years. In 2018, the PFP had only polled 2% for one race, 2.3% for Treasurer.

The Green Party polled 3.5% for Controller, 2.7% for Attorney General, and 2.5% for Secretary of State. In 2018, it had only polled 2% for Secretary of State, 2.1%. Leaders of the two parties had encouraged their activists not to run in races in which the other party was running someone.

The other two qualified minor parties, Libertarian and American Independent, automatically stay on the ballot because they have high registration.

The Socialist Workers Party this year has placed candidates for federal or state office on the ballot in five states. This is the highest number of states in which the party has done this, in a midterm year, since 1998. So far, no other party with "Socialist" or "Socialism" has qualified to appear in any federal or state race.

On June 10, the Federal Election Commission denied 2020 primary season matching funds to Howie Hawkins, the Green Party presidential nominee. The FEC acknowledged that he had received enough contributions to qualify, but said he had missed a deadline for submitting evidence. There was a great deal of confusion in 2020 over how Paypal contributions should be documented. Also the Covid health crisis made interaction with the FEC very difficult; the agency office was physically closed and most employees worked at home.

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