July 2022 Ballot Access News Print Edition

Ballot Access News
July 2022 – Volume 38, Number 2

This issue was printed on buff paper.


Table of Contents

  1. FEDERAL COURT RULING STRIKES BLOW AT NEW JERSEY’S DISCRIMINATORY BALLOT FORMAT
  2. CALIFORNIA BILL TO REPEAL TOP-TWO INTRODUCED
  3. FLORIDA WIN
  4. FLORIDA LOSS
  5. NEBRASKA WIN
  6. MORE INITIATIVE NEWS
  7. MISSOURI TOP-FOUR INITIATIVE MAY FAIL TO QUALIFY
  8. LAWSUIT NEWS
  9. LAST TIME SOMEONE ELECTED TO FEDERAL OR STATE OFFICE WHO WASN’T A DEMOCRATIC OR REPUBLICAN PARTY NOMINEE
  10. 2022 PETITIONING FOR STATEWIDE OFFICE
  11. DEMOCRATS TRY TO KEEP NORTH CAROLINA GREEN PARTY OFF BALLOT
  12. DUAL LIBERTARIAN PETITIONS CIRCULATING IN NEW HAMPSHIRE
  13. TENNESSEE LEGISLATOR SWITCHES FROM DEMOCRAT TO INDEPENDENT
  14. CALIFORNIA PEACE & FREEDOM, GREEN PARTIES IMPROVE ON 2018
  15. SOCIALIST WORKERS PARTY
  16. FEC DENIES HOWIE HAWKINS PRIMARY SEASON MATCHING FUNDS
  17. SUBSCRIBING TO BAN WITH PAYPAL

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.


CALIFORNIA BILL TO REPEAL TOP-TWO INTRODUCED

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 76th Assembly race in 2018, and the 38th 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.


FLORIDA WIN

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.


FLORIDA LOSS

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.


NEBRASKA WIN

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.


MORE INITIATIVE NEWS

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".


MISSOURI TOP-FOUR INITIATIVE MAY FAIL TO QUALIFY

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.


LAWSUIT NEWS

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.


LAST TIME SOMEONE ELECTED TO FEDERAL OR STATE OFFICE WHO WASN’T A DEMOCRATIC OR REPUBLICAN PARTY NOMINEE

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


2022 PETITIONING FOR STATEWIDE OFFICE

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.


DEMOCRATS TRY TO KEEP NORTH CAROLINA GREEN PARTY OFF BALLOT

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."


DUAL LIBERTARIAN PETITIONS CIRCULATING IN NEW HAMPSHIRE

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.


TENNESSEE LEGISLATOR SWITCHES FROM DEMOCRAT TO INDEPENDENT

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 PEACE & FREEDOM, GREEN PARTIES IMPROVE ON 2018

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.


SOCIALIST WORKERS PARTY

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.


FEC DENIES HOWIE HAWKINS PRIMARY SEASON MATCHING FUNDS

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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