STUDY SHOWS MAGNITUDE OF MINOR PARTY AND INDEPENDENT VOTE FOR U.S. HOUSE

A recent study shows that the minor party and independent vote for U.S. House has been far higher in the last quarter-century than it had been since the Great Depression. Starting in 1996, it has never fallen below 2,000,000, and sometimes has been as high as 4,300,000.

By contrast, between 1938 and 1990, it had never been as high as 2,000,000, and was below 1,000,000 between 1950 and 1966. Between 1954 and 1964, it was always below 515,000.

The chart on page four shows the total for each year. The chart also shows the number of districts in which a minor party or independent candidate appeared on the ballot. If one factors in the fact that there are so many districts that don’t give the voters a choice to support a minor party or independent candidate, it is apparent that more voters usually vote for minor party and independent candidates for U.S. House (if they are permitted to do so) than they do for president. This is true for all presidential elections in the last hundred years, except for 1924, 1968, 1980, 1992, and 1996.

Because so many voters want to vote for minor party and independent candidates for U.S. House, it is puzzling that the U.S. Supreme Court has been so much more protective of minor party and independent presidential candidates, than for minor party and independent candidates for House.

Five times, the U.S. Supreme Court has ruled against state laws that kept minor party or independent presidential candidates off the ballot, but it has never done so in a full opinion concerning U.S. House candidates.

The Court put George Wallace on the ballot in Ohio in 1968. In 1969, it struck down an Illinois law that barred an independent slate of presidential electors from the ballot the preceding year. In 1972, it remanded a California law that had kept Gus Hall, the Communist Party presidential candidate, off the ballot in 1972, and the state then assumed it would lose the case on remand and eased the law. In 1976 the Court put Eugene McCarthy on the Texas ballot as an independent presidential candidate. In 1983 the Court struck down the Ohio law that would have kept independent presidential candidate John B. Anderson off the ballot, if the District Court had not earlier struck it down.

Yet the only time the Court ever struck down a ballot access law affecting U.S. House candidates was in 1976 in Pennsylvania, when it summarily affirmed the decision of a 3-judge U.S. District Court in Salera v Tucker. That law had required U.S. House candidates to collect all their signatures in a 3-week period ending in May.

The text of the U.S. Constitution offers more protection for minor party and independent candidates for U.S. House than it does for presidential candidates. The original Constitution gives states complete freedom to choose presidential electors in any fashion, but it requires the states to let voters choose U.S. House members.

It appears the Court is about to again injure ballot access for U.S. House candidates. On September 28 it will almost surely reject Cowen v Raffensperger, 22-101, a case that challenges the worst ballot access law in the nation for U.S. House candidates.

The basis for this prediction is that the Court hasn’t asked Georgia to respond.

The Difference Between Georgia and All Other States

The millions of voters who have voted for minor party and independent candidates for U.S. House has not included any voters from Georgia since 1982. That is because Georgia realistically doesn’t permit such candidacies. As the evidence showed in that case, twenty such candidates had made strong efforts to comply with the Georgia law during the last two decades, and all of them failed. The only evidence to suggest that the requirements can be met was the fact that an independent candidate who needed fewer than 4,000 signatures to run for local partisan office was able to comply in 2022. But U.S. House candidates need approximately 27,000 valid signatures, to be collected in the same time window that was in effect for that independent candidate for District Attorney.

Also, candidates for U.S. House must contend with complicated district boundaries, whereas the independent candidate for District Attorney was running in a district that did not cross county lines.

Every other state allows minor party and independent candidates for U.S. House. In 2022, 46 states have such candidates on the ballot. The states, other than Georgia, that do not have any in 2022 did have them in either 2020 or 2018. They are New Hampshire, New Mexico, and Washington.

The Georgia law for U.S. House has been unchanged since 1964, except that in 1982 it was set aside for that year only, due to late redistricting.

ROBERTS COURT IS THE WORST FOR BALLOT ACCESS SINCE THE VINSON COURT

U.S. Supreme Court Chief Justice John Roberts has been in office since 2005. The Court he has led has been the first since the Fred Vinson Court of the 1940’s to have done no good whatsoever for ballot access.

Fred Vinson Court: ruled in 1948 that the U.S. Constitution does not protect ballot access for minor parties or independent presidential candidates, in MacDougall v Green, an Illinois case that resulted in Henry Wallace, Progressive Party presidential nominee, being left off the ballot. The Vinson Court had been the last Court to have done nothing for ballot access rights, until the Roberts Court.

Earl Warren Court: was the first to even mention minor parties in a supportive sense, which it did in 1957 in Sweezy v New Hampshire, writing, "History has amply proved the virtue of political activity by minority, dissident groups, which innumerable times have been in the vanguard of democratic thought and whose programs were ultimately accepted…The absence of such voices would be a symptom of grave illness in our society." However, Sweezy was not a ballot access case.

In 1968, the Warren Court struck down Ohio’s ballot access laws for minor party and independent candidates. In 1969 it struck down the Illinois county distribution requirements for statewide minor party and independent candidate petitions.

The Burger Court: in 1970, in a summary affirmance, it struck down a New York state law that gave free lists of registered voters to qualified parties but not unqualified parties that were petitioning to get on the ballot. In 1972 it struck down the Texas high filing fees for candidates.

In 1974 it struck down Indiana’s loyalty oath as a condition of ballot access for minor parties. Also in 1974, is struck down California‘s mandatory filing fees, at least for indigent candidates. And in another California case in 1974, it said that courts should strike down ballot access laws if the effect of the ballot access restriction was that few, if any, candidates or parties ever qualified. In 1976 it summarily struck down a Pennsylvania law that required petitions to be completed within three weeks in the spring of an election year. Also in 1976, it struck the Texas ban on independent presidential candidates. In 1977 it summarily struck down Arkansas’ April petition deadline for independent candidates. In 1979 is struck down the Illinois 5% petition requirement for district office if the resulting number of signatures was a number higher than the fixed-number statewide requirement. In 1983 it struck down Ohio’s March petition deadline for independent presidential candidates.

The Rehnquist Court: in 1988 it struck down a Colorado law that outlawed paying anyone to gather signatures. In 1986 it said in dicta that a state could not prohibit a party from nominating a non-member. In 1989 it ruled that California could not tell a political party how to structure itself. In 1992 it again ruled that Illinois could not require more signatures for district office than for statewide office. In 1995 it ruled that Arkansas could not add to the constitutional qualifications for someone to appear on the ballot as a Congressional candidate. In 1999 it ruled that Colorado could not force ballot access petitioners to be registered voters.

The Roberts Court: has done nothing to stop repressive ballot access laws. In addition, it has made things worse, by refusing to hear cases in which lower courts had upheld laws that defied favorable past Supreme Court rulings.

The absolute worst was in 2020, when the U.S. Supreme Court refused to hear a North Carolina case in which the Fourth Circuit had upheld a March 3 petition deadline for independent presidential candidates, despite the fact that in 1983, the U.S. Supreme Court had struck down Ohio’s March 20 independent presidential deadline.

The Roberts Court also made ballot access worse in 2008, when it upheld New York’s ballot access rules for primary candidates, after the Second Circuit had struck them down. Those rules applied to the obscure office of Delegate to a state party nominating convention for choosing judicial nominees. Also in 2008, the Roberts Court said that Washington’s top-two primary was not necessarily unconstitutional, after the Ninth Circuit had struck it down.

ALASKA EASES DEFINITION OF QUALIFIED PARTY

On September 12, Alaska Governor Mike Dunleavy signed SB 161, which eases the definition of a qualified party. The old law required registration membership of 3% of the last vote cast. The new law requires 5,000 registered members. The effect of the new law is to restore the Libertarian Party to the ballot. It has 6,966 registrants. The Green Party has 1,533. The Veterans Party has 1,420.

NEW MEXICO COURT REMOVES COUNTY COMMISSIONER FOR INSURRECTION

On September 6, a New Mexico state trial court removed Couy Griffin from his office as an Otero County Commissioner for his actions on January 6, 2021, under the Fourteenth Amendment’s "insurrection" clause. He was arrested for trespassing but not convicted. He is appealing. State v Griffin, Santa Fe District Court.

BALLOT ACCESS WINS

Michigan: on September 8, the State Supreme Court ruled that an initiative should be on the ballot, even though the State Canvassing Board had removed it, because the petition’s description of the measure had no spaces between the words, making it somewhat difficult to read. Reproductive Freedom for All v Board of State Canvassers, SC164760. The vote was 5-2. The initiative is on the subject of abortion.

Missouri: on September 12, a State Appeals Court ruled that an initiative should remain on the ballot. The county election officeials had found that it lacked enough valid signatures, but then the Secretary of State had reviewed their work and found enough additional valid signatures to qualify. Then opponents of the initiative, which concerns marijuana, had sued the Secretary of State, but the Court said the Secretary of State had the authority to do what he did. Sweeney v Ashcroft, WD85679. On September 13 the State Supreme Court refused to disturb the ruling.

North Dakota: on September 9, the State Supreme Court ruled that an initiative does have enough valid signatures. The Secretary of State had invalidated all the signatures processed by two particular Notaries Public, who had committed errors involving a few sheets, but the Court said that was not justified. The initiative concerns term limits for state office. Hendrix v Jaeger, 2022-168.

Ohio: on September 20, the State Supreme Court restored Terpsehore P. Maras to the ballot as an independent candidate for Secretary of State. State ex rel Maras v LaRose, 2022-1083. The Secretary of State had said she was 7 signatures short, and had refused to count some more signatures found valid by the counties and transmitted to him a few days later than the original transmission.

As a result, there are now only two states with no minor party or independent candidates for statewide office in November 2022 (although a few states don’t have any statewide races). Those two states are Kentucky and Washington.

Ohio(2): on September 22, the State Supreme Court put Eric Ungaro, an independent running for state legislature, on the ballot. He had been kept off because election officials felt his campaign literature hinted that he was really a Democrat. State ex rel Ungaro v Mahoning County Board of Elections, 2022-1061. Ohio law on who can be an independent candidate is extremely arbitrary.

Texas: on August 26, the State Supreme Court kept Libertarian Party candidates on the ballot who had not paid a filing fee. In re Keith Self, 22-0658. The candidates had been challenged by their Republican opponents, but the Court said the challenge had been filed too late. This is the second election in a row with this outcome.

Texas (2): on September 16, a Texas state trial court ruled that independent candidate Linda Curtis, who is running for the legislature, should remain on the ballot. Her opponent had challenged her on the basis that some of the blanks on some petition sheets had not been filled out. The Court said all the missing information was shown on those sheets in other places. Gerdes v Scott, Travis District Court, D-1-GN-22-3841.

Utah: on September 12, a U.S. District Court refused to remove a Republican legislative candidate from the ballot. The Utah Democratic Party had filed the lawsuit, and had argued that the nominee, Joel Ferry, was not eligible because he had been appointed to an executive position in state government. The court said that even though he is ineligible, it doesn’t follow that he can’t run. If he is re-elected, he can resign. Utah Democratic Party v Henderson, 2:22cv-581.

BALLOT ACCESS LOSSES

Florida: on August 25, the Eleventh Circuit denied injunctive relief to the People’s Party, which had been trying to qualify its candidatea for county office. Then, on August 31, the U.S. District Court said the case is moot and dismissed it. The party has asked for rehearing. People’s Party of Florida v Florida Secretary of State, 22-12451. The issue is the law that says new parties can’t run any candidates in their first year of existence. The federal judges who are handling this case seem unaware that constitutional ballot access cases are not moot just because it is too late to give injunctive relief.

Michigan: on September 14, the State Supreme Court refused any relief to candidate for Highland Park city council, who had been removed because they didn’t check a box on their candidacy forms that indicated if they are running as party nominees or as independent candidates. Highland Park elections are non-partisan, so the candidates believed that the questoin was irrelevant. One of the justices wrote separately to say that the legislature should amend the law. As a result of the decision, there are fewer candidates for city council on the ballot than there are vacancies to fill. Davis v Highland Park City Clerk, 164564.

Missouri: on August 31, the Eighth Circuit ruled that county distribution requirements are constitutional for initiatives. The case is from Nebraska. Eggers v Evnen, 22-2268. The decision reversed the lower court and is in conflict with several decisions of the Ninth Circuit.

South Carolina: on August 18, a state trial court removed the Labor Party nominees for Governor, Lieutenant Governor and U.S. House from the ballot, on the grounds that the party’s nominating conventions had been held too late. The Democratic Party had brought the lawsuit.

MINOR PARTY AND INDEPENDENT CANDIDATE VOTE FOR U.S. HOUSE

The chart below is meant to illustrate the increase in support for minor party and independent candidates for U.S. House since 1994. It is also meant to illustrate that Georgia has not cast any votes for such candidates since 1982. Finally, the chart shows the number of districts in each year (1922-2022) in which voters had a chance to vote for U.S. House, for a party other than the Democratic or Republican Parties, or for an independent candidate.

For states that allow disaggregated fusion (meaning the voter can choose which party line to support, when a candidate is supported by two parties), the column showing the number of districts with an "other" choice includes those instances. But when a state only allows aggregated fusion, those instances are not included, because there is no way for a voter to signal support for a party other than one of the major parties.

The chart excludes write-in votes.

Year	#Districts with “Other” Candidate	National “Other” Vote	Georgia “Other” Vote
2022	175	?	0
2020	201	2,708,679	0
2018	202	2,416,608	0
2016	209	4,309,451	0
2014	202	2,747,693	0
2012	242	3,990,988	0
2010	299	3,188,049	0
2008	235	3,794,006	0
2006	221	2,079,125	0
2004	248	3,077,729	0
2002	289	2,630,713	0
2000	328	4,054,313	0
1998	275	2,472,385	0
1996	305	2,790,910	0
1994	199	1,947,304	0
1992	266	3,999,098	0
1990	133	1,556,402	0
1988	156	1,183,663	0
1986	139	760,616	0
1984	181	1,072,874	0
1982	233	1,179,289	9,049
1980	198	1,577,097	0
1978	147	1,084,961	0
1976	226	1,567,498	0
1974	178	1,273,053	0
1972	148	1,310,086	0
1970	145	1,360,183	0
1968	144	1,197,983	0
1966	82	776,772	0
1964	74	514,401	25,078
1962	71	373,379	0
1960	88	512,864	0
1958	91	407,695	0
1956	81	372,876	10,931
1954	84	374,220	5,129
1952	128	832,364	0
1950	131	822,656	0
1948	167	1,197,609	0
1946	130	796,576	19,617
1944	141	999,779	2,932
1942	126	898,047	3,527
1940	181	1,487,218	1,667
1938	185	1,705,155	832
1936	274	2,082,904	0
1934	270	1,629,544	240
1932	263	1,676,805	0
1930	141	702,193	369
1928	162	637,481	0
1926	158	635,735	0
1924	211	1,314,949	0
1922	220	838,338	347

U.S. HOUSE OF REPRESENTATIVES CANDIDATES ON 2022 BALLOT

The chart below shows the number of candidates on the ballot for U.S. House in each state. No candidate is counted twice; if the candidate is the nominee of two parties, he or she is listed in the party of membership. The "other(1) column is: Colorado, Unity; Delaware, Nonpartisan; Illinois and Michigan, Working Class; Minnesota and Nebraska, Legal Marijuana Now; New Jersey and Pennsylvania, Socialist Workers; New York Conservative; Oregon, Progressive; Rhode Island Moderate; South Carolina Alliance; Utah, United Utah. In the "other(2)" column: Colorado, Colorado Center; Minnesota, Grassroots; Utah, Independent American.

~	# seats	Dem.	Rep.	Lib’t.	Green	Consti.	Indp Pty	oth(1)	oth(2)	indp.
Ala	7	5	7	7	0	0	0	0	0	1
Alas	1	1	1	1	0	0	0	0	0	0
Ariz	9	7	9	0	0	0	0	0	0	1
Ark	4	4	4	3	0	0	0	0	0	1
Cal	52	52	45	0	1	0	0	0	0	0
Colo	8	8	8	5	0	3	0	2	1	0
Ct	5	5	5	1	3	0	1	0	0	0
Del	1	1	1	1	0	0	0	1	0	0
D.C.	1	1	1	1	1	0	0	0	0	0
Fla	28	25	28	2	0	0	0	0	0	8
Ga	14	14	14	0	0	0	0	0	0	0
Hi	2	2	2	1	0	0	0	0	0	0
Id	2	2	2	1	0	0	0	0	0	0
Ill	17	17	16	0	0	0	0	1	0	1
Ind	9	9	9	4	0	0	0	0	0	1
Iowa	4	4	4	0	0	0	0	0	0	1
Kan	4	4	4	1	0	0	0	0	0	0
Ky	6	6	6	0	0	0	0	0	0	1
La	6	4	6	3	0	0	1	0	0	0
Maine	2	2	2	0	0	0	0	0	0	1
Md	8	8	8	2	1	0	0	0	0	0
Mass	9	9	8	1	0	0	0	0	0	1
Mich	13	13	13	9	0	3	0	7	0	0
Minn	8	8	8	0	0	0	0	3	1	0
Miss	4	4	4	1	0	0	0	0	0	0
Mo	8	8	8	7	0	0	0	0	0	0
Mont	2	2	2	2	0	0	0	0	0	1
Neb	3	3	3	0	0	0	0	1	0	0
Nev	4	4	4	2	0	1	0	0	0	0
N H	2	2	2	0	0	0	0	0	0	0
N Jer	12	12	12	11	0	0	0	2	0	16
N Mex	3	3	3	0	0	0	0	0	0	0
N York	26	26	24	0	0	0	0	2	0	2
No C	14	14	14	2	0	0	0	0	0	0
No D	1	0	1	0	0	0	0	0	0	1
Ohio	15	15	15	0	0	0	0	0	0	2
Okla	5	5	5	0	0	0	0	0	0	3
Ore	6	6	5	0	1	2	1	1	0	0
Penn	17	15	17	2	1	0	0	1	0	1
R I	2	2	2	0	0	0	0	1	0	0
So C	7	5	7	0	1	0	0	1	0	0
So D	1	0	1	1	0	0	0	0	0	0
Tenn	9	9	9	0	0	0	0	0	0	18
Texas	38	32	38	12	0	0	0	0	0	7
Utah	4	4	4	1	0	2	0	2	1	0
Vt	1	1	1	1	0	0	0	0	0	3
Va	11	11	11	0	0	0	0	0	0	2
Wash	10	10	10	0	0	0	0	0	0	0
W Va	2	2	2	0	0	0	0	0	0	1
Wis	8	7	8	1	0	0	0	0	0	4
Wyo	1	1	1	1	0	1	0	0	0	0
TOTAL	436	414	424	87	9	12	3	25	3	78

ALASKA SPECIAL ELECTION

Alaska held its first Ranked Choice Election on August 16, for U.S. House, to fill a vacancy. Mary Peltola, the only Democrat on that ballot, defeated her two Republican opponents, Sarah Palin and Nick Begich.

TWO NEW HAMPSHIRE LIBERTARIANS WIN DEMOCRATIC NOMINATIONS

New Hampshire held its primary on September 13. Two Libertarian nominees, who had already qualified for the general election ballot by petition, also won Democratic nominations via write-ins in the Democratic primary. They are Nick Sarwark, running for Hillsborough County Attorney; and Richard Manzo, for County Treasurer. They will appear on the November ballot as both Libertarian and Democratic.

NEW PARTY QUALIFIES IN DELAWARE

Delaware permits a party to be qualified if it has registration membership of one-tenth of 1% of the state registration. Recently the state recognized the Nonpartisan Party. Delaware already has a qualified party named the Independent Party. The Nonpartisan Party has a nominee for U.S. House. It was formed by dissident members of the Libertarian Party.

FORMER NORTH CAROLINA GOVERNOR JOINS NO LABELS PARTY

Pat McCrory, who was a Republican Governor of North Carolina 2012-2016, has joined the No Labels Party. The No Labels Party is similar to Americans Elect, which existed in 2011-2012. It is working to support a centrist presidential candidate in 2024, and is therefore petitioning for party status in as many states as possible so that the candidate will not face a difficult ballot access process. It expects to qualify in eleven states before the end of 2022. It denies that it is a political party, but legally, it is seeking qualified status as a new party in various states.

OREGON INDEPENDENT SPENT $897,000 TO OBTAIN BALLOT ACCESS

Betsy Johnson, independent candidate for Governor of Oregon, spent $897,000 for professional petitioners, in order to get 23,744 valid signatures. She collected 48,214, and of those, 37,700 were valid.