NORTH CAROLINA GREEN PARTY WINS ACCESS CASE

FIRST NORTH CAROLINA WIN IN FOURTH CIRCUIT SINCE 1980

On August 5, U.S. District Court Judge James C. Dever, a Bush Jr. appointee, issued an order putting the Green Party’s 2022 nominees on the November 2022 ballot. North Carolina Green Party v North Carolina State Board of Elections, e.d., 5:22cv-276.

The intervenors in the case, the North Carolina Democratic Party and the national Democratic Senate Campaign Committee, then asked the Fourth Circuit to reverse the District Court. But on August 11, the Fourth Circuit declined to do so. The Fourth Circuit order is not signed, so it is not known which three judges had the case.

This is the first time the Fourth Circuit has ruled in favor of ballot access for a minor party or independent candidate in North Carolina since 1980. The Fourth Circuit has been the nation’s most hostile circuit for ballot access for over twenty-five years.

In 1995, the Fourth Circuit upheld the North Carolina law making it impossible for a voter to register into an unqualified party, in McLaughlin v North Carolina State Board of Elections. This is the only case that ever upheld such a law. By contrast, the Second and Tenth Circuits have struck down such laws, along with lower courts in Iowa, New Jersey, and Oklahoma.

In 2000, the Fourth Circuit upheld the North Carolina petition deadline (late May) for new parties to submit their petition, in Nader 2000 Primary Committee v Bartlett, 230 F.3d 1353.

In 2011, the Fourth Circuit upheld the number of signatures needed by an independent U.S. House candidate, 4% of the number of registered voters, in Greene v Bartlett.

The decision was shocking, because the evidence showed that no independent had ever appeared on the ballot for U.S. House in the history of North Carolina government-printed ballots, so obviously the law was too difficult. However, in 2017 the legislature voluntarily lowered it to 1.5% of the number of registered voters.

In 2014, the Fourth Circuit again upheld the May petition deadline for new parties, in Pisano v Strach.

Worst of all, in 2020, the Fourth Carolina upheld the new North Carolina independent petition deadline of early March, for all independent candidates, even presidential independents. Buscemi v Bell. This opinion contradicts Anderson v Celebrezze, the U.S. Supreme Court decision from 1983 that struck down Ohio’s late March petition deadline for independent presidential candidates. The Buscemi decision also contradicts a Fourth Circuit opinion from 1980, Anderson v Morris, which struck down Maryland’s March petition deadline for independent candidates. The Buscemi opinion didn’t even mention Anderson v Morris.

Given that record, it is refreshing that the Fourth Circuit acted in favor of the Green Party. The issue was the law that says minor parties must certify their nominees by July 1. The Green Party tried to comply, but the State Board of Elections blocked them because it was unsure if the petition had enough signatures. The state had had the signatures since mid-May.

On August 1, the Board decided the petition was valid, but said it was too late to put the party’s nominees on the 2022 general election ballot.

The Courts then ruled that in these circumstances, the July 1 deadline for candidate submission is a severe burden and likely unconstitutional.

Democrats Hurt Themselves by Appearing to Favor Monopoly

The leading election law attorney for the national Democratic Party is Marc Elias. He obviously believes in keeping the Green Party off the ballot in states in which the election is perceived to be close. Under his leadership the Democratic Party kept the Green Party off the ballot in Montana in both 2018 and 2020. Also under his leadership, the Democratic Party kept the Green Party’s presidential candidate off the ballot in 2020 in Pennsylvania and Wisconsin.

Ironically, there is considerable evidence that the presence of left political parties or independent candidates does not hurt the Democratic Party. Or if it does, the number of votes the Democratic Party loses is much smaller than Democratic leaders believe.

1. The 2016 exit polls show that voters who voted for Jill Stein, when asked whom they would have voted for if they couldn’t vote for Stein, were not a source of many potential votes for Hillary Clinton. The exit poll results were: 25% of the Stein voters would have voted for Clinton; 11% would have voted for Donald Trump; and 61% would not have voted, or would have voted for another minor party candidate.

The closest margin in 2016 in any state carried by Donald Trump was Michigan. Trump won by 10,704 votes. Jill Stein received 51,463 votes in Michigan.

Applying the exit poll results to Michigan would mean that Clinton would have received a net gain of 14% from the Stein voters. Applying 14% to the Stein Michigan total equals 7,205 votes. So Trump would still have carried Michigan, and even if he hadn’t, he still would have won the election.

Furthermore, if the Democratic Party had tried to remove Stein from the ballot in Michigan or any other state, that would have engendered bad publicity for the Democratic Party and the Clinton campaign, and probably lost some votes for Clinton.

2. In 2004, the Washington Post featured a story in its October 22 issue about polling as applied to independent candidate Ralph Nader. All three of the nation’s three leading pollsters found that, to a slight extent, Nader’s presence on the ballot helped George W. Bush. A slight majority of the voters who said they intended to vote for Nader said if they couldn’t do that, they would vote for Bush over the Democratic nominee, John Kerry.

An analysis of the 2004 actual election returns bolsters that conclusion. In most of the 34 states in which Nader was on the ballot, his strongest percentage was in a county that was more pro-Bush than that state as a whole. See the January 1, 2005 print issue of Ballot Access News for the details.

3. Respected pollster Samuel Lubell, who later in his life became a political scientist, found that in the 1948 presidential election, the presence of Progressive Party nominee Henry Wallace helped Harry Truman defeat the Republican nominee, Thomas Dewey. His research is explained in his book The Future of American Politics, published in 1950. Lubell found that whereas the Progressive Party cost Truman approximately 1,000,000 votes, it caused two million voters to switch from their previous support of the Republican Party, to Truman.

4. A research psychologist, Dan Ariely, reported in his book Predictably Irrational that if an individual is faced with three choices, and two of the choices are similar to each other but one is clearly superior to the other in some way, the individual is less likely to choose the third, dissimilar choice.

Applying this to elections, if the Green Party and the Democratic Party are both broadcasting a pro-environment message, and the Republican Party is not, that would result in an assist to the Democratic Party. The Democratic ticket would be seen as superior to the Green ticket because of the far greater likelihood that the Democratic ticket could win the election.

A concrete example can be seen in the 1936 presidential election. The Communist Party presidential nominee for president, Earl Browder, campaigned vigorously in favor of Franklin D. Roosevelt’s New Deal policies. The Communist Party and Browder wanted Roosevelt to be re-elected. To help, they intuited that having a second pro-New-Deal candidate was good for the Democratic ticket. Although we now know that the 1936 election resulted in a landslide win for Roosevelt, no one before the election was held knew that. There was great suspense in the nation about who would win. The only poll conducted that year, the famous National Digest poll, predicted Republican nominee Alf Landon would win.

On August 16, the Pennsylvania House State Government Committee finally held a hearing on HB 1369, which would let independent voters choose a primary ballot. The bill had been introduced on May 10, 2021, so proponents had a long wait. So far the committee hasn’t acted on the bill. An identical Senate bill, SB 690, hasn’t yet been heard.

On August 10, the Ninth Circuit struck down the Montana ban on out-of-state petitioners for initiatives. Pierce v Jacobson, 21-35173. The U.S. District Court had upheld the ban in 2020. The case had been filed in 2018.

The Ninth Circuit declined to strike down the Montana law that bars paying circulators on a per-signature basis. It wrote, "We do not hold that pay-per-signature restrictions are per se constitutional", but that there wasn’t enough evidence in this case to justify striking down the per-signature law.

The decision is by Judge John Tunheim, a Clinton appointee. It is also signed by Judges Richard Paez (Clinton) and Jacqueline H. Nguyen (Obama).

The only states that still have an out-of-state circulator ban of any type that has not been enjoined or struck down are Arkansas, New Jersey, North Dakota, and South Dakota. Also Mississippi has a meaningless ban on out-of-state circulators for initiatives, but the state no longer has the initiative process.

On August 2, the Seventh Circuit decided Hero v Lake County Election Board, 21-2793. It upheld the right of the Indiana Republican Party to exclude a candidate from its primary ballot for political reasons. The candidate had endorsed an independent candidate for local offic, and the Republican Party had then banned him from running in its primary for six years.

It is not known if there will be an appeal to the U.S. Supreme Court. The Ninth Circuit came to an opposite conclusion in 2008 in Alaskan Independence Party v State.

Florida: on August 22, a State Appeals Court issued an opinion in Jones v Schiller, 1D22-2465, that weakens the law that says no one may run in a primary who has not been a member of that party for a full year before filing. The case concerns Rebekah Jones, a Democratic candidate for U.S. House, First District. The evidence showed that she had lived in Maryland in 2021 and for the period June-August, was a registered independent in that state. The lower court had removed her from the Florida primary ballot, but the Appeals Court said the duration of residency law can’t be enforced if the candidate declares that she meets the requirement.

Florida (2): on August 19, a State Appeals Court issued an opinion in Torres v Shaw, 1D22-2423. The case concerns Jerry Torres, a Republican candidate for U.S. House, 14^th district. His declaration of candidacy had been notarized by a Mississippi notary while Torres himself was in Africa. The lower court had removed him from the ballot, finding that the notarization was defective. But the Appeals Court said no one has standing to challenge a candidate for these reasons, and put him back on the ballot.

Technically, both candidates’ names were printed on the August 23 primary ballots, but the lower courts had ordered that votes for the two candidates should not be counted, and that signs should be displayed at polling places stating that the two could not receive valod votes.

These two decisions should be helpful for the People’s Party, which is in the Eleventh Circuit trying to get its nominee for Pasco County Commission, Elise Mysels, on the November ballot.

The lower court had kept her off because she had not been a member of the People’s Party for a full year. But it was impossible for her to have been a registered member of the People’s Party before September 2021, because it wasn’t on the ballot and voters in Florida can’t register into an unqualified party. The lower court said it was too late to give her any relief, a conclusion that is contradicted by the two recent state court opinions. Mysels was unopposed for the People’s Party nomination, and when in Florida only one candidate enters a primary, he or she is deemed nominated. There is plainly enough time to add her to the November ballot.

Louisiana: on August 19, the State Supreme Court ruled that Adrian Perkins should be restored to the November ballot as a candidate for Mayor of Shreveport. The lower state courts had kept him off. He had listed the wrong address on his declaration of candidacy. Deal v Perkins, 2022-C-01212. The vote was 4-3. The majority said that it doesn’t follow that just because that type of error is made, therefore the penalty is exclusion from the ballot.

Perkins is the incumbent and is running for re-election. Louisiana doesn’t permit write-in votes, so if Perkins had not win his case, he would have been forced out of office even though the voters may very well have wanted to elect him.

On August 19, the U.S. Supreme Court issued a somewhat surprising order that is favorable to the federal Voting Rights Act. The issue was whether Georgia should remove Public Service Commissioner from the November 2022 ballot.

Public Service Commissioners are statewide partisan officers, but the U.S. District Court had ruled that the Voting Rights Act requires that the state use districts instead of at-large elections. The evidence shows that district elections are more likely to enable Black voters to be represented.

The U.S. District Court realized there wasn’t enough time this year to draw districts, so instead said that the two seats up this year should not be on the 2022 ballot. The office has a six-year term.

But on October 12, the Eleventh Circuit had stayed the order of the U.S. District Court, and put the two offices back on the ballot. The Eleventh Circuit cited the "Purcell Principle" which says that election law changes should not be made by courts during an election year. This is a very poorly-defined doctrine, and the lower courts differ widely on what type of election law cases are covered by the Purcell Principle.

The U.S. Supreme Court order says the Eleventh Circuit should not have used the Purcell Principle, because the state itself had not claimed that it was too difficult to remove the offices from the ballot at this relatively late date. The case is Rose v Raffensperger.

A result of this case is that the Libertarian Party is no longer ballot-qualified for Public Service Commission. The Georgia ballot access law is irrational. It says that the party is on for statewide office, but not district office. If the Libertarian Party runs for this office in a district, it will need about 70,000 signatures for each nominee. This odd fact may make it easier to persuade the U.S. Supreme Court to hear the Georgia Libertarian Party’s ballot access case. The job is the same, whether the elections are at-large or not.

The Supreme Court will consider whether to hear the Libertarian case, Cowen v Raffensperger, 22-101, at its September 28 conference.

Arkansas: on August 19, U.S. District Court Judge Timothy Brooks, an Obama appointee, struck down the law that makes it a crime for anyone (other than a polling place official) to assist more than six voters at the polls for any given election. Arkansas United v Thurston, e.d., 5:20cv-5193. The plaintiff is an organization that provides translation services at the polls. The basis for the opinion is that the law conflicts with the federal Voting Rights Act.

California: on July 30, a Superior Court struck down the San Francisco law that lets permanent residents who are not citizens vote in School Board elections. Lacy v City and County of San Francisco, CPF-22-517714. The city will appeal.

Connecticut: on August 2, a Superior Court denied injunctive relief against the law that requires a candidate running in a primary for U.S. House to obtain the signatures of 2% of that party’s registered members, in 42 days. Hrezi v Merrill, Hartford, HHD-cv22-6156703-S. In Connecticut, only the Democratic and Republican Parties have primaries; other ballot-qualified parties nominate by convention.

Nebraska: the Eighth Circuit will soon hear a case over the county distribution requirement for statewide initiatives. The U.S. District Court had struck down the law. The state is fighting very hard to win the case on appeal, and has enlisted the aid of fifteen other states. The amicus filed by the other states argues that one-person, one-vote principles do not apply to initiative petitions. The states that filed this are Alabama, Alaska, Arkansas, Florida, Idaho, Indiana, Louisiana, Missouri, Montana, North Dakota, Ohio, Oklahoma, South Carolina, Utah, and West Virginia. All have Republican Attorneys General. Some of those states don’t even have the initiative process.

North Carolina: on August 2, four independent voters filed a federal lawsuit against the law that says the State Board of Elections, and all county election boards, can only have members who are registered members of one of the two largest parties. Common Cause v Moore, m.d., 1:22cv-611. A similar lawsuit had been filed in 2017, by attorney Michael Crowell representing himself, but it was never resolved and finally was voluntarily dismissed in 2021.

Virginia: on August 2, a U.S. District Court ruled that the state need not hold elections for the lower house of the legislature until 2023, even though the districts are basoed on the 2010 census, not the 2020 census. Thomas v Beals, e.d., 3:22cv-427. This is the second such lawsuit to fail. Both times the court found the plaintiffs lack standing.

Anyone may obtain a free copy of Partisan Prophets, a History of the Prohibition Party, published in 1972, written by Roger C. Storms. It is paperback, 73 pages.

Also, anyone may obtain a free copy of A Faithful Remnant, Prohibition Party 1972-2016, by James Hedges, paperback, 137 pages. It has been re-published and contains a fold-out chart showing which calendar years the party was on the ballot, by state, for the party’s entire history. To get either or both books, contact James Hedges, PO Box 212, Needmore Pa 17238, prohibitionists@hotmail.com.

On July 30, the Pennsylvania state elections office realized it had posted incorrect numbers of signatures needed for independent candidates, and the nominees of unqualified parties, for district office. So that day, it put up the new requirements. Ironically, the petitions were due on August 1.

For U.S. House, the cumulative signature total for all districts rose from 30,821 to 33,673. Pennsylvania frequently has trouble calculating the requirements for district office in redistricting years. The office must calculate 2% of the winner’s vote in the last election, with the new district boundaries overlaid on the old ones. The legislature would be wise to pass a bill setting a fixed number of signatures.

Eighteen U.S. Senators, from both major parties, have introduced S4573, the "Electoral Count Reform Act". If it passes, it will be the first election reform bill that Congress has passed in years. It would clarify how Congress counts the electoral vote.

The charts below list all the minor party candidates in California and Washington who ran in races with both a Democrat and a Republican also in the race. This chart covers the most recent years, and it is a supplement to similar charts that cover earlier elections. They were in these issues of B.A.N.: June 2013, July 2014, and October 2016.

Washington has used a top-two system starting in 2008, and California since 2011. These four charts, combined, show that there is not one instance at which a minor party candidate was able to qualify for the general election ballot in a top-two system, if the race had at least one Democrat and one Republican.

The California legislature has a bill to repeal the top-two system, ACA 16. It has been endorsed by the Libertarian Party of California, and the Peace & Freedom Party, but it has not made any headway and has not even been referred to a committee.

DATE	CANDIDATE	PARTY	OFFICE	RANK	VOTE %
8/7/2018	Mike Luke	Libertarian	U.S. Senate	12th of 29	.72%
8/7/2018	Steve Hoffman	Freedom Socialist	U.S. Senate	17th of 29	.43%
8/7/2018	James Robert "Jimmie" Deal	Green	U.S. Senate	22nd of 29	.23%
8/7/2018	Tyler Myles Vega	Progressive	U.S. House 6	3rd of 3	3.82%
8/7/2018	Richard Travis Reyes	Libertarian	U.S. House 8	9th of 12	.68%
8/7/2018	Ryan Cooper	Libertarian	State Senate 8	3rd of 3	5.14%
8/7/2018	Charles Schaefer	Libertarian	State Senate 33	3rd of 3	6.73%
8/7/2018	Jeremy Fitch	Libertarian	State Senate 44	3rd of 3	3.86%
8/7/2018	Nathaniel Deily	Libertarian	State Representative 41-1	3rd of 3	2.04%
8/4/2020	Liz Hallock	Green	Governor	9th of 36	.87%
8/4/2020	Henry Clay Dennison	Socialist Workers	Governor	16th of 36	.24%
8/4/2020	Matt Seymour	Libertarian	Lieutenant Governor	10th of 11	1.14%
8/4/2020	Jared Frerichs	Libertarian	Lieutenant Governor	11th of 11th	.87%
8/4/2020	Gentry Lange	Progressive	Secretary of State	4th of 4	2.13%
8/4/2020	Kelsey Reyes	Libertarian	Land Commissioner	6th of 7	3.27%
8/4/2020	Anthony Welti	Libertarian	Insurance Commissioner	3rd of 3	13.67%
8/4/2020	Steven Skelton	Libertarian	U.S. House 1	5th of 7	2.73%
8/4/2020	Ryan Cooper	Libertarian	U.S. House 4	5th of 6	2.30%
8/4/2020	Jorge Besada	Libertarian	U.S. House 9	4th of 4	2.42%
8/4/2020	Taylor Zimmerman	Progressive	State Representative 10-2	3rd of 3	4.17%
8/4/2020	Allen Acosta	Libertarian	State Representative 22-1	3rd of 4	5.15%
8/4/2020	Jonny Meade	Socialist	State Representative 22-1	4th of 4	5.14%
8/4/2020	Kathy M. Woodward	Progressive	State Representative 37-2	7th of 7	1.17%
8/4/2020	Jorge Garrido	Libertarian	State Representative 38-1	4th of 4	5.24%
8/2/2022	Henry Clay Dennison	Socialist Workers	U.S. Senator	11th of 18	.62%
8/2/2022	Oliver Black	American Solidarity	U.S. House 3	9th of 9	.17%
8/2/2022	Justin Greywolf	Libertarian	U.S. House 8	9th of 11	.68%
8/2/2022	Larry Stanley	Alliance	State Representative 8-2	4th of 4	1.84%
8/2/2022	Sharon Kay Schiller	Peace & Freedom	State Representative 16-1	3rd of 3	3.34%
8/2/2022	Todd Briske	Forward	State Representative 27-1	3rd of 3	4.54%
8/2/2022	David Wiley	Libertarian	State Representative 38-2	3rd of 4	2.90%

MINOR PARTY CANDIDATES, CALIFORNIA TOP-TWO PRIMARIES SINCE APRIL 2020

DATE	CANDIDATE	PARTY	OFFICE	RANK	VOTE %
6/7/2022	Luis Javier Rodriguez	Green	Governor	7 of 26	1.76%
6/7/2022	Heather Collins	Green	Governor	18th of 26	.42%
6/7/2022	James G. Hanink	American Solidarity	Governor	24th of 26	.14%
6/7/2022	Mohammad Arif	Peace & Freedom	Lieutenant Govrnor	6th of 8	2.67%
6/7/2022	Gary N. Bienner	Green	Secretary of State	5th of 7	3.02%
6/7/2022	Laura Wells	Green	Controller	6th of 6	3.79%
6/7/2022	Meghann Adams	Peace & Freedom	Treasurer	4th of 4	3.61%
6/7/2022	Dan Kapelovitz	Green	Attorney General	5th of 5	3.18%
6/7/2022	Nathalie Hrizi	Peace & Freedom	Insurance Commissioner	6th of 9	2.83%
6/7/2022	Veronika Fimbres	Green	Insurance Commissioner	7th of 9	1.93%
6/7/2022	John Thompson Parker	Peace & Freedom	U.S. Senator	8th of 23	1.53%
6/7/2022	James "Hank" Conn	Green	U.S. Senator	15th of 23	.52%
6/7/2022	Eleanor Garcia	Socialist Workers	U.S. Senator	16th of 23	.50%
6/7/2022	Pamela Elizondo	Green	U.S. Senator	18th of 23	.46%
6/7/2022	Don J. Grundmann	Constitution	U.S. Senator	22nd of 23	.15%
6/7/2022	Joe Dehn	Libertarian	U.S. House 17	5th of 5	1.62%
6/7/2022	William "Gunner" Meurer	Green	U.S. House 30	8th of 9	.98%
6/7/2022	Tony Rodriguez	American Independent	U.S. House 30	9th of 9	.89%
6/7/2022	Julius Cesar Flores	Green	U.S. House 42	6th of 8	2.68%
6/7/2022	Jose Cortes	Peace & Freedom	U.S. House 51	3rd of 3	2.21%
6/7/2022	Joshua Brown	Peace & Freedom	Assembly 1	4th of 4	1.92%
6/7/2022	Janice Mariae Bonser	Libertarian	Assembly 6	5th of 5	1.85%
6/7/2022	Tania Sole	Green	Assembly 21	7th of 7	1.66%
6/7/2022	Roger Cohen	Libertarian	Assembly 50	3rd of 3	3.39%

The No Labels Party is petitioning for qualified status in at least eight states, for 2024. It is receiving no publicity.

By contrast, the Forward Party founded by Andrew Yang is not petitioning for party status anywhere, yet it received considerable publicity recently because the SAM Party, and the pressure group called the Renew America Movement, merged with the Forward Party. However, none of them have any candidates likely to be on the 2022 ballot in any state.

On August 23, Alaska Republican candidate for U.S. House Tara Sweeney withdrew from the race. She had placed fourth in the August 16 primary, so was entitled to be on the November ballot. Because she withdrew, the fifth-place finisher, Libertarian Chris Bye, will appear on the November ballot. Bye had only polled .63% of the vote, but that was enough for fourth place. Sweeney had polled 3.71%.

It is likely that California and Kentucky are the only states in which no minor party or independent candidate will be on the ballot for any statewide office. For the states that don’t have any statewide offices up this year, there will be at least one independent or minor party candidate for U.S. House. The states with no statewide offices up are Mississippi, Montana, New Jersey, Virginia, and West Virginia.

On July 30, John Rensenbrink died at the age of 93. He was one of the founders of the national Green Party, and also of the Maine Green Party, one of the most successful state units of the Green Party.

On August 11, Michael Badnarik died at the age of 68. He had been the Libertarian Party presidential nominee in 2004. He had received 397,265 votes, a very high total for a minor party nominee who lacked both high name recognition nor a large campaign fund.

On August 17, Oregon independent gubernatorial candidate Betsy Johnson submitted 48,214 signatures. She needs 23,744 valid signatures.

On August 23, John Wood, an independent moderate candidate for U.S. Senate from Missouri, withdrew. The real reason he had petitioned as an independent was the possibility that Eric Greitens would win the August 2 Republican primary. But Greitens did not win. This incident shows that states would be wise to set independent candidate deadlines at least a month after primaries. If Missouri had had a later petition deadline, relative to the primary, the entire petition process would not have been needed. Both Wood and the state would have saved money. Wood wouldn’t have wasted money on an unnecessary petition, and the state would not have needed to check his signatures.

The South Carolina legislature outlawed fusion this year, but the new law doesn’t take effect until 2023. There will be one fusion candidacy in the state this year. The Alliance Party and the Democratic Party have both nominated the same candidate for State Superintendent of Education.