FIRST CIRCUIT ENJOINS MAINE BAN ON OUT-OF-STATE CIRCULATORS

On July 7, the First Circuit issued an opinion in We the People PAC v Bellows, 21-1149. The First Circuit agreed with the U.S. District Court, which had enjoined Maine’s ban on out-of-state circulators. Both courts said the ban is likely unconstitutional. On July 21, the Maine Secretary of State asked for a rehearing en banc.

The judges were William J. Kayatta and David J. Barron (both Obama appointees), and U.S. District Court Judge Patti B. Saris, a Clinton appointee. The panel took almost a year to issue its opinion. The oral argument had been in July 2021.

The outcome was somewhat surprising, because the Maine Supreme Court had upheld the ban twice, in 1998 and 2020. Also a U.S. District Court had upheld it in 1999. The ban only applies to initiative and referendum petitions, not to candidate petitions.

The fight to overturn residency requirements for petitioners has been proceeding for seventy years, and has succeeded for the most part. At one time 25 states had residency requirements for circulators. Here is a list of those states, and what has happened in each:

Alaska: in 2017, a federal lawsuit was filed against the ban, Bonner v Bahnke. The state agreed the ban could not be defended, and settled the case.

Arizona: in 1997 the State Supreme Court upheld the out-of-state ban in McDowell Mountain Ranch Land v Vizcaino. In 2000 a state appeals court struck down the ban on out-of-district circulators, in KZPZ v Black Canyon. In 2008 the Ninth Circuit struck down the out-of-state ban in Nader v Brewer.

Arkansas: the ban was created in 2021, and is being fought in federal court in Liberty Initiative Fund v Thurston.

California: the ban was upheld in state court in 1976 in Allen v Eu, a Communist Party case. It was also upheld in 1994 in Browne v Russell. But in 2013, the Ninth Circuit hinted in Libertarian Party of Los Angeles County v Bowen that the law should be struck down, so the state voluntarily repealed it.

Colorado: the ban on out-of-district circulators was struck down by the Tenth Circuit in 2002 in Chandler v City of Arvada. The ban on out-of-staters circulating primary candidate petitions was overcome in Goodall v Williams in 2018.

Connecticut: the ban was upheld in 1976 in Fishman v Schaffer, a Communist Party case. It was upheld again in 1993 in LaRouche v Kezer, and again in 2000 in LaRouche v Bysiewicz. But it was invalidated in 2016. For primary petitions, the 2016 case was Wilmoth v Merrill. For general elections, the 2016 win was Libertarian Party of Connecticut v Merrill.

District of Columbia: in 2012, the district agreed to repeal the ban after the filing of the lawsuit Libertarian Party v Danzansky.

Georgia: the state voluntarily repealed the ban in 1975.

Idaho: the ban was upheld in 2001 in Idaho Coalition United for Bears v Cenarrusa, but was struck down in 2010 in Daien v Ysursa.

Kansas: the out-of-district ban was upheld in 1988 in Merritt v Graves. But in 2010, when the lawsuit Constitution Party of Kansas v Biggs was filed, the state gave in and repealed it.

Illinois: the out-of-district ban was struck down by the State Supreme Court in 1952 in Larvenette v Elliott, a Progressive Party case. The out-of-state ban was struck down in 2000 in Krislov v Rednour. Thus Illinois was the first state in which an out-of-district ban was ever struck down, and the first state in which an out-of-state ban was ever struck down.

Maine: as noted above, the State Supreme Court upheld the out-of-state ban twice, in Hart v Secretary of State in 1998, and again in Jones v Secretary of State in 2020. A U.S. District Court upheld it in 1999 in Initiative & Referdum Institute.

Michigan: the Sixth Circuit struck down the out-of-district ban in 2008 in Bogaert v Land.

Mississippi: a U.S. District court upheld the out-of-state ban for initiatives in 1999 in Kean v Clark. The ban is a moot point, now that Mississippi has abolished its initiative process.

Montana: a U.S. District Court upheld the ban, which only applies to initiatives, in 2020, in Pierce v Stapleton. The decision was appealed and is pending in the Ninth Circuit.

Nebraska: the ban was upheld in 1984 in Libertarian Party of Nebraska v Beermann, but was invalidated in 2011 in Citizens in Charge v Gale.

New Jersey: the out-of-district ban was invalidated in 2014 in Empower Our Neighborhoods v Guadagno. The out-of-state ban as applied to primary petitions was invalidated in 2021 in Arsenault v Way. The state still has a ban on out-of-state circulators as applied to general election petitions.

New York: the out-of-district ban was upheld in 1981 in Ryan v State Board of Elections, but it was invalidated in 2000 for primary petitions in Lerman v Board of Elections. It was invalidated for general election petitions in 2004 in Chou v Board of Elections, a Green Party case. The out-of-state ban was invalidated in U.S. District Court in 2018 in Libertarian Party v Spano, but then the Second Circuit said the case was moot because the party had gained qualified status later that year. In 2020 the party lost qualified status by the legislature’s changing the definition of a party, so it re-filed the case and won injunctive relief in 2022 in Schmidt v Kosinski.

North Dakota: in 2001 the Eighth Circuit upheld the out-of-state ban for initiatives in Initiative & Referendum Institute v Jaeger, but the precedent is considered limited because the plaintiffs didn’t submit evidence showing the burden imposed by the ban.

Ohio: in 2008 the Sixth Circuit invalidated the out-of-state ban for candidate petitions in Nader v Blackwell, a complicated case that took four years.In 2010 the state agreed not to enforce the ban for initiatives, after the lawsuit Friedlander v Brunner had been filed.

Pennsylvania: in 2015 the out-of-district ban, for general election candidates, was invalidated in Merrill v Weaver, a U.S. District Court Green Party case.In 2012 the State Supreme Court ruled in In re Stevenson that the Merrill decision is binding in the whole state. In 2015 a U.S. District Court invalidated the out-of-state ban for general election candidates in Green Party v Aichele. In 2022 the out-of-state ban for primary petitions was invalidated in Benezet Consulting v Secretary, although the ruling only applies to the particular plaintiffs who filed the case. Another U.S. District Court is hearing a case over the ban as applied to initiatives, in OpenPittsburgh.org v Voye.

Oklahoma: in 2008 the Tenth Circuit invalidated the out-of-state ban in Yes on Term Limits v Savage.

South Dakota: in 2011, the out-of-state ban was upheld in Constitution Party v Nelson. A new challenge is pending in League of Women Voters v Noem.

Virginia: in 1985, the out-of-district ban was upheld in Libertarian Party v Judd. In 2010 the same ban was again upheld in Lux v Rodrigues. The plaintiff asked for U.S. Supreme Court intervention, but on September 30, 2010, Chief Justice John Roberts refused to grant any relief, writing that the issue isn’t settled. But in 2013, the Fourth Circuit struck down all residency requirements for Virginia petitions, in Libertarian Party v Judd. Virginia asked for U.S. Supreme Court review, and was supported by an amicus signed by officials from Oklahoma, Hawaii, Idaho, Nebraska, Ohio, South Dakota, and Wyoming. But the Supreme Court didn’t take the case.

West Virginia: in 1976 a U.S. District Court upheld the out-of-district ban in Harless v McCartney. But in 1980, the State Supreme Court invalidated it in West Virginia Libertarian Party v Manchin.

Wisconsin: in 1999 a state court upheld the out-of-district ban in City of Chippewa Falls v Town of Hallie. But in 2003 a federal court invalidated it in Frami v Ponto, a Constitution Party case.

The lawsuits against residency requirements for petitioners have been carried on mostly by groups backing initiatives, and by minor parties. The movement for easier ballot access has won more lawsuit victories on this issue than on any other issue that has not had a full opinion from the U.S. Supreme Court. In 1999 that Court made these cases easier to win when it struck down laws requiring petitioners to be registered voters, in Buckley v American Constitutional Law Foundation.

This year, initiatives to abolish the ability of parties to nominate candidates circulated in Missouri and Nevada. The Nevada initiative succeeded in getting enough signatures and will be on the ballot in November 2022. However, if it passes, it must go before the voters again in 2024, because Nevada requires initiatives that amend the state constitution to pass twice.

The Missouri initiative did not have enough signatures. Backers say they will try again in 2023.

On July 14, the North Carolina Green Party filed a federal lawsuit to obtain a place on the ballot. North Carolina Green Party v North Carolina State Board of Elections, e.d., 4:22cv-78. The lawsuit does not ask that any law be declared unconstitutional. Instead, it challenges the June 30 decision of the State Board of Elections to keep it off the ballot, given that the county boards had already checked the petition and found it has enough valid signatures.

The State Board’s decision, on a 3-2 vote, seems to be based on a belief that there aren’t enough valid signatures, and that the county boards didn’t examine the petition carefully enough. But the State Board has never set forth a detailed account of its own, as to precisely which signatures aren’t valid. The State Board has three Democrats and two Republicans, and it is the Democrats who voted against the party. The case is before U.S. District Court Judge James Dever, a Bush Jr. appointee. The hearing is August 8.

The Democratic National Committee is seeking to intervene in the case, against the Green Party.

On July 20, sixteen U.S. Senators introduced S.4573, a bill to reform the 1887 Electoral Count Act. The lead sponsor is U.S. Senator Susan Collins (R-Maine). It would clarify that when Congress counts the electoral votes in early January of years that follow presidential elections, the Vice-President (who presides over the Senate) cannot arbitrarily reject the electoral votes certified by state officials. The bill has bi-partisan support.

On November 8, the voters of Portland, Oregon, will vote on a charter amendment for proportional representation for city council elections. The measure was put on the ballot by the Charter Review Commission. Currently Portland has five city commissioners, each elected at-large. The proposal would set up four districts. Each district would elect three council members, using Single Transferable Vote, which is a method of proportional representation in multi-winner elections.

Cities in the U.S. that have used Single Transferable Vote in the past include New York city, Cincinnati, and Cleveland, but none of them use it currently. Cambridge, Massachusetts, does use it.

A bill in Congress to use Single Transferable Voting for multi-member U.S. House districts, HR 3863, only has seven co-sponsors and doesn’t get much publicity.

The Georgia Libertarian Party will ask the U.S. Supreme Court to strike down the ballot access law for U.S. House. The cert petition will be filed July 29. Cowen v Rafflesperger.

Constitutional Precedent in U.S. Supreme Court Reasoning, by David Schultz, 189 pages. 2022, by Edward Elgar Publishing.

David Schultz is a professor both of law and political science. He has written a book that is very timely, given the U.S. Supreme Court’s June 24 decision in Dobbs v Jackson Women’s Health Organization, which overturned Roe v Wade. The book finds that throughout history, the Court has reversed itself 145 times. Each time it did so, it had to struggle to explain why it was disregarding the principle of stare decisis, the general tradition inherited from Great Britain that frowns on reversals.

The book contains key excerpts from 34 cases from the past in which the Court explicitly overturned its own earlier precedent. There have been 145 instances when the court did that. The book was published shortly before the Dobbs decision came out.

The featured cases are presented in chronological order. The Court only reversed itself ten times between 1789 and 1930. Then, the pace accelerated. The Warren Court reversed 32 cases; the Burger Court also 32; the Rehnquist Court 30; and the Roberts Court 15 by the time of publication.

Decisions that have overturned precedent tend to be interesting, because they generally deal with mainstream controversial issues.

There are some election law decisions in the book. There are no ballot access decisions because none of them has ever been explicitly overturned. If you read this book, you will gain a well-formed opinion on whether the Court has succeeded in setting forth a coherent theory of when precedents should be overturned.

State	Example #1	Year	Example #2	Year
Alabama	National Democratic Party of Alabama	1982	Alabama Independent Party	1970
Alaska	Alaskan Independence	2022	American Independent	1972
Arizona	American Independent	1972	Arizona Progressive Democratic	1932
Arkansas	Independent Party	1994	American Party	1970
California	American Independent Party	2022	Independent Progressive Party	1954
Colorado	Americans Elect	2012	– – –	– –
Connecticut	Independent Party	2022	American Independent Party	1970
Delaware	Independent Party	2022	American Party	1986
Dist. Columbia	Umoja Party	1998	– – –	– –
Florida	Independent Party	2022	American Party	1976
Georgia	Independent Democratic Party	1944	Independent Party	1908
Hawaii	Aloha Aina Party	2022	Independent Party	2014
Idaho	US Taxpayers Party	1999	American Independent Party	1976
Illinois	American National Party	1930	Independent Republican Party	1930
Indiana	American Party	1982	– – –	– –
Iowa	American Independent Party	1972	States Rights Democrat Party	1950
Kansas	US Taxpayers Party	1998	American Party	1984
Kentucky	American Party	1972	– – –	– –
Louisiana	Independent Party	2022	American Party	1972
Maine	Green Independent Party	2022	– – –	– –
Maryland	Independent Party	2008	American Party	1972
Massachusetts	United Independent Party	2016	Independent Voters Party	1992
Michigan	US Taxpayers Party	2022	Tisch Independent Citizens Party	1984
Minnesota	US Taxpayers Party	1999	American Party	1980
Mississippi	American Delta Party	2016	American Party	1980
Missouri	US Taxpayers	1999	American Party	1980
Montana	American Party	1976	National States Rights Party	1964
Nebraska	US Taxpayers Party	1996	National Democratic Party	1898
Nevada	Independent American Party	2022	Americans Elect Party	2012
New Hamp.	– – –	– –	– – –	– –
New Jersey	– – –	– –	– – –	– –
New Mexico	Independent American Party	2014	US Taxpayers Party	1999
New York	Independence Party	2020	American Labor Party	1954
North Carolina	Americans Elect Party	2012	American Party	1976
North Dakota	Americans Elect Party	2012	American Party	1976
Ohio	Americans Elect Party	2012	American Independent Party	1976
Oklahoma	Americans Elect Party	2012	American Party	1972
Oregon	Independent Party	2022	American Party	1994
Pennsylvania	American Independent Party	1970	– – –	– –
Rhode Island	Americans Elect Party	2012	– – –	– –
South Carolina	American Party	1986	Independent Party	1982
South Dakota	Americans Elect Party	2012	– – –	– –
Tennessee	American Party	1972	Independence Party	1908
Texas	La Raza Unida Party	1978	American Party	1976
Utah	Independent American Party	2020	Independent Party	1996
Vermont	Independent Party	1964	Independence Party	1910
Virginia	American Independent Party	1969	Independence Party	1908
Washington	Hisgen Independent Party	1908	– – –	– –
West Virginia	– – –	– –	– – –	– –
Wisconsin	US Taxpayers Party	1999	American Independent Party	1982
Wyoming	Americans Elect	2012	– – –	– –

~~	Dem.	Rep.	Indp, misc	Lib’t.	Green	Consti.	Wk Fam	Reform	other
Alaska	77,094	142,781	347,076	6,893	1,509	728	?	?	20,983
Arizona	1,334,001	1,478,781	1,439,705	34,753	3,108	?	?	?	– –
Arkansas	88,750	124,823	1,557,410	697	103	?	?	?	– –
Calif.	10,261,984	5,249,974	5,223,244	224,931	92,570	172	?	?	888,337
Colorado	1,069,070	957,063	1,715,211	40,398	8,416	11,756	?	?	7,295
Conn.	826,379	464,761	933,768	3,501	1,332	10	326	15	32,358
Delaware	361,394	209,208	173,721	2,190	737	260	328	46	11,441
Dt. Col.	379,489	26,567	82,556	2,290	3,855	?	?	?	– –
Florida	4,954,579	5,136,732	3,868,920	39,232	7,624	3,675	?	1,437	203,685
Idaho	129,550	577,507	275,271	11,147	?	4,036	?	?	– –
Iowa	597,120	681,871	556,012	11,560	2,792	0	0	0	– –
Kansas	495,574	851,882	560,309	22,207	0	0	0	0	0
Kentucky	1,609,569	1,612,060	326,843	15,075	2,111	1,086	?	170	389
Louis’na	1,193,289	1,001,527	671,157	16,100	2,493	221	0	920	121,548
Maine	395,893	313,866	358,909	665	45,249	?	?	?	?
Md.	2,241,318	993,619	879,334	17,308	6,443	?	?	?	3,978
Mass.	1,534,549	476,480	2,756,915	19,097	3,793	370	78	145	21,482
Nebraska	345,937	604,806	267,800	18,262	?	?	?	?	2,794
Nevada	607,895	556,544	577,506	16,589	2,499	79,429	?	?	– –
N. Hamp.	275,220	265,116	330,466	0	?	?	?	?	– –
N. Jersey	2,532,333	1,521,137	2,318,928	22,805	11,625	15,248	?	1,767	29,634
N. M.	600,584	419,757	298,626	14,479	3,574	732	993	?	6,812
N. York	5,980,144	2,648,235	2,762,169	19,421	20,724	?	45,613	?	516,840
No. Car.	2,493,127	2,177,187	2,449,268	49,255	?	?	?	?	– –
Okla.	695,078	1,140,933	397,191	18,899	?	?	?	?	– –
Oregon	1,014,041	730,765	1031,392	20,865	7,820	3,845	8,364	?	141,185
Penn.	4,000,436	3,450,289	1,233,695	44,150	9,863	?	?	?	– –
Rhode Is.	287,228	97,486	324,659	0	?	?	?	?	– –
So. Dak.	150,680	289,182	140,923	2,670	?	143	?	?	– –
Utah	236,343	877,553	468,388	19,990	2,261	6,480	?	?	63,650
W. Va.	382,559	444,318	301,464	9,714	2,323	125	?	?	– –
Wyo.	43,285	200,579	34,956	2,633	0	754	?	?	– –
TOTAL	47,194,492	35,723,389	34,663,792	727,776	242,824	129,070	55,702	4,500	2,072,411
Percent	39.06%	29.57%	28.69%	.60%	.20%	.11%	.05%	.00+%	1.72%

The "other" column: Ak, Alaskan Independence 18,840, Veterans 1,408, Moderate 306, Progressive 199, Patriots 193, Alliance 37. Cal, American Independent 749,556, Peace & Freedom 117,314, Common Sense 20,813, Peoples 654. Co, Approval Voting 4,154, Unity 3,141. Ct, Independent Pty; De, Independent Pty 9,967, Conservative 760, American Delta 581, Socialist Workers 133; Fl, Independent Pty 200,406, Ecology 1,189, Peoples 426. Unity 173; Ky, Socialist Workers; La, Independent Pty 120,643, Conservative 820, Socialist 76, Amer. Solidarity 9; Md, Working Class; Ma, United Independent 20,976, Socialist 1,388, Prohibition 18; Ne, Legal Marijuana Now; NJ, Conservative 15,602, Natural Law 6,252, Socialist 7,780; NM, Independent American 3,640, Better for America 3,172; NY, Independence 363,437, Conservative 152,876, SAM 527; Or, Independent Party137,972, Progressive 3,213; Ut, Independent American 61,321, United Utah 2,329.

Totals October 2020 were: Democratic 47,106,084 (39.67%), Republican 35,041,482 (29.51%), independent & miscellaneous 33,696,700 (28.38%), Libertarian 652,261 (.55%), Green 240,222 (.20%), Constitution 129,556 (.11%), Working Families 49,758 (.04%), Reform 9,004 (.01%), other parties 1,814,973 (1.53%).

Totals October 2016 were: Democratic 45,690,825 (40.60%), Republican 33,052,332 (29.37%), independent & miscellaneous 31,200,104 (27.72%), Libertarian 497,535 (.44%), Green 256,560 (.23%), Constitution 92,483 (.08%), Reform 5,294 (.00+%), Working Families 61,517 (.05%), other parties 1,662,329 (1.50%).

Totals October 2012 were: Dem. 43,512,746 (41.85%), Rep. 31,298,863 (30.10%), indp. & misc. 26,808,810 (25.79%), Libertarian 330,811 (.32%), Green 250,682 (.24%), Constitution 77,918 (.07%), Reform 22,880 (.02%), Americans Elect 6,408 (.01%), other parties 1,659,537 (1.60%).

Totals October 2008 were: Dem. 43,933,901 (43.62%), Rep. 30,944,590 (30.72%), indp. & misc. 24,157,259 (23.98%), AIP/Constitution 438,222 (.44%), Green 255,019 (.25%), Libertarian 240,328 (.24%), Reform 32,961 (.03%), other parties 675,980 (.67%).

Totals October 2004 were: Dem. 37,301,951 (42.19%), Rep. 28,988,593 (32.79%), indp. & misc. 20,471,250 (23.15%), Constitution 320,019 (.36%), Green 298,701 (.34%), Libertarian 235,521 (.27%), Reform 63,729 (.07%), Natural Law 39,670 (.04%), other parties 695,639 (.79%).

During July, the New Mexico Green Party regained party status, and the Rhode Island Moderate Party placed a candidate for U.S. House on the ballot, the first minor party candidate for that office in that state since 2004. The Working Class Party placed its first nominee for Illinois partisan office on the ballot; he is running for U.S. House, 4^th district. The Illinois Libertarian statewide candidate petition was not challenged, except as to its nominee for Secretary of State; the signatures are being reviewed now.

Independent candidates who have been active in the Republican Party are circulating petitions in the Missouri U.S. Senate race, and the Kansas gubernatorial race.

The Moderate Party of New Jersey has petitioned for one U.S. House seat, but because its nominee is also the Democratic nominee, its petition has been rejected, because New Jersey bans fusion. The party has filed a lawsuit in state court, arguing that the fusion ban violates the state Constitution. Moderate Party v Way, A-3542-21.

The pressure group "No Labels" has tentatively decided to qualify itself as a party for the 2024 ballot, and is either circulating a petition, or about to start, in Alaska, Arizona, Nevada, Ohio, and Oregon. The effort appears somewhat similar to the 2011-2012 petitioning carried out by Americans Elect.

The Republican national convention in 2024 will be in Milwaukee; the Libertarian national convention will be in Washington, D.C. No other party has yet chosen its site. Democrats will probably choose early in 2023.

Hawaii requires all ballot-qualified parties to nominate by primary, but it is very rare for any minor party to have a contested primary. However, in the August 13, 2022 primary, the Aloha Aina Party and the Libertarian Party both have contested gubernatorial primaries.

On July 19, Michael Peroutka, the Constitution Party’s 2004 presidential nominee, won the Republican primary for Maryland Attorney General. He defeated his only opponent with 55.9% of the vote.

On June 14, Maine held a special election to fill the vacancy in the State Senate, 7^th district. The results: Democratic 63.44%; Republican 35.44%; Green 1.12%. When the same seat had been up in 2022, the results had been: Democratic 55.02%; Republican 44.98%.

The July 2022 B.A.N. petitioning chart erroneously did not show the Constitution Party on the Nevada ballot, or the Socialist Workers Party on the Minnesota ballot. Also the page six article about the Peace & Freedom Party’s showing in the June 2022 California primary overlooked that the party had polled 5.0% in June 2018 for Insurance Commissioner.