MINNESOTA MAKES IT MORE DIFFICULT TO BE A QUALIFIED PARTY

On May 23, Minnesota Governor Tim Walz signed HF 1830, which makes it more difficult for a group to become a qualified party, or to remain a qualified party. The old law required a group to poll at least 5% for a statewide race at either of the last two elections. The new requirement is 8%.

In addition, a qualified party must demonstrate on November 1 of any odd year that it has an organization in approximately two-thirds of the counties, or two-thirds of the legislature districts. Minnesota has 67 legislative districts. This provision is exceedingly vague and it is not clear if an "organization" can consist of just one person.

HF 1830 is this year’s budget bill, running over 100 pages. When election law changes are sandwiched into budgets, that makes it difficult for opponents to defeat the election law provision, because the budget bill must pass. New York in 2020 also made the definition of a qualified party more difficult inside the budget bill.

Minnesota is countering the national trend of the last 50 years. Thirty-three states and the District of Columbia have eased the definition of a qualified party since 1976. Here the list:

YEAR	STATE
2022	Alaska
2019	Texas
2018	Oklahoma
2018	South Dakota
2017	Maine
2017	Nebraska
2017	No. Carolina
2014	California
2013	Ohio
2013	Oregon
2012	Utah
2005	North Dakota
2004	Louisiana
2002	Michigan
2001	Minnesota
1999	Florida
1999	Dist Columbia
1998	Colorado
1998	Maryland
1998	Wyoming
1997	Hawaii
1994	Rhode Island
1993	Nevada
1992	Arizona
1991	Montana
1991	Virginia
1990	Massachusetts
1986	Georgia
1985	Wisconsin
1983	New Mexico
1979	Missouri
1977	Arkansas
1977	Idaho
1977	Vermont

It is because of this long list of states that eased their law, that the median vote test of the 50 states for party status has decreased from 5% to 2% during since 1976. Some states eased the definition more than once, but the list only mentions each state once, listing the more recent instance.

Minnesota itself eased the definition of a qualified party in 2001, to help the Independence Party. The definition was changed from a group that had polled 5% at the last election, to one that had polled 5% at either of the last two elections. The Independence Party held the governorship at the time, and the party wanted to retain its status in 2004, when the only statewide race was president; the party was anticipating that it would not run anyone for president in 2004 but wanted to remain on the ballot.

Democrats in the Minnesota legislature are responsible for making the definition of a qualified party more difficult. Their motive seems to be pique that the state’s only ballot-qualified third parties in the last decade, the Legal Marijuana Now Party and the Grassroots-Legalize Cannabis Party, had nominees whose motivation in running was to injure Democratic Party nominees. The only other state that has increased the vote test for party status in this century, New York, also did so at the instigation of Democrats.

SF 1830 also removes the ability of a declared write-in candidate to receive a tally of his vote total in most cases.

SF 1830 helps minor parties and independent candidates in two ways. It says that petitions need not be on legal-size paper.

Also, it says that all candidates have an equal chance to be listed first on the ballot. Previously, only nominees of qualified parties had a chance to be listed first. But this change does not apply to presidential candidates; instead petitioning presidential candidates still go on the bottom of the list.

There is a fair possibility the U.S. Supreme Court will hear a case on state restrictions on ballot labels, from New Jersey. The case is Mazo v Way, 22-1033. It is extremely difficult to persuade the Court to hear any case, but the candidates who filed the case have done an excellent job of increasing their chances.

They have hired Paul Clement, a former Solicitor General of the United States (under President George W. Bush), to present their cert petition. They have also obtained amicus curiae briefs from many law professors and from organizations that defend free speech. Furthermore, their case is strong, because traditionally the Court has defended free speech, and yet the lower courts in this New Jersey case did not apply the same level of scrutiny that most restrictions on free speech get.

The New Jersey law allows primary candidates to choose a label, up to six words. But if the candidate chooses a label that mentions a living person, that living person must give consent. Also if the proposed label mentions a New Jersey corporation, the corporation must give consent.

The cert petition points out that these slogans would almost certainly be banned: "Evict Putin from Ukraine"; "Never-Trumper"; "Anti-Phil-Murphy"; "Rename the New York Jets".

The purpose of the New Jersey law seems to be to allow official organizations of the major parties, which are incorporated, to let voters know which candidates are endorsed. There are also traditions that allow the endorsed candidates to receive the most prominent spot on primary ballots, and the amicus filed by New Jersey law professors Ronald Chen, John Farmer, Paula Franzese, and Samuel Wang, explains that.

But the cert petition does not delve into that side issue, and presents the case as a restriction on free speech.

The cert petition and most of the amici make a strong case that the Anderson-Burdick test for evaluating election law cases is hopelessly arbitrary. If the Court were to accept this case, the decision might have useful consequences for ballot access law jurisprudence.

Soon the Court will probably ask New Jersey to file a response. That will probably happen before June 22, the date of the last conference.

Michigan: bills to provide that this state join the National Popular Vote Plan are considered somewhat likely to pass, although they haven’t made any headway yet. They are SB 126 and HB 4156.

Minnesota: Governor Tim Walz signed HF 1830 on May 23. Minnesota has now joined the Plan.

Nevada: on May 18, the legislature passed AJR 6, a proposed constitutional amendment that would provide for the state to join the Plan. If it passes the legislature in the next session, it will appear on the ballot for a popular vote.

As a result of Minnesota joining the Plan, states with 205 electoral votes have joined. The Plan can’t go into effect until states with 270 have joined.

Connecticut: HB 6823 passed the House on May 10.

Delaware: SB 57 passed the legislature on May 18.

Hawaii: SB 141 passed the legislature on May 2.

New York: SB 438 and AB 928 have not made any headway yet.

California: on April 13, SB 437 passed the Senate. It requires parties to notify the Secretary of State at least 75 days before the general election of the identity of their presidential and vice-presidential nominees. Surprisingly, existing law has no such deadline, in California and some other states.

Kansas: HB 2087 was signed into law on April 14. It requires parties to have a bylaw on the subject of how that party chooses its nominees for presidential elector.

California: on May 1, the Assembly unanimously passed AB 1227, which lets Santa Clara County uses ranked choice voting for elections for its own officers. This county is the most populous county in northern California.

District of Columbia: an initiative is circulating to use ranked choice voting for all primary and general elections. It would not disturb the ability of parties to have nominees. It is likely to succeed in getting on the ballot.

Maine: on May 18, LD 1917 passed the Joint Veterans & Legal Affairs Committee. It expands the use of ranked choice voting. Currently it exists for all primaries, but in general elections it only applies to federal office. The bill would expand its use to state office in general elections. If it passes, the voters would vote on it.

Oregon: on May 23, the House passed HB 2004, which would provide for ranked choice voting in all primaries and general elections, for statewide office and U.S. House elections. It would not go into effect unless the voters approve the idea in 2024. It will be difficult for this bill to pass the Senate, because enough Republican Senators are boycotting the session to prevent a quorum.

Maine: on May 23, the Senate defeated LD 1320, which would have let independent voters sign petitions to place a candidate on a primary ballot. The outcome will probably result in a lawsuit. A U.S. District Court last year ruled that Libertarian Party primary petitions could be signed by independent voters. The Green Party would like the same relief.

Texas: only one of the bills to make ballot access more difficult passed. That bill is SB 994, which clears up a legal flaw in the law passed several years ago, requiring candidates who seek the nomination of a party that nominates by convention to have paid a filing fee. The flaw in the old law had prevented it from going into effect.

Bills to make it more difficult for a party to stay on the ballot, to force all qualified parties to nominate by primary, and to double filing fees all failed to pass. Minor party and independent activists worked very hard to defeat these bills.

Vermont: on May 12, the Senate passed HB 429, which bans "sore losers." But even though the bill has now passed both houses, it isn’t through the legislature because the versions of the bill in each house differ.

California: on May 25, the Assembly passed AB 292. It makes it easier for an independent voter to obtain the presidential primary ballot of a party that permits independents to vote in its presidential primary. All registered voters receive a ballot automatically in the postal mail, but current law provides that independent voters receive only a non-partisan primary ballot, unless they make a special effort to get ballot they wish. The bill provides that the sample ballot (which is also mailed automatically to all registered voters, in advance of the ballot itself) will explain to independent voters that they can phone, text, or e-mail their elections office to receive the ballot of the party of their choice, if that party permits independents to use its presidential primary ballot.

Georgia: on May 4, the Secretary of State said the 2024 presidential primaries will be on March 12.

Iowa: on May 4, the legislature passed HF 716, which prohibits parties from letting people vote in their caucuses unless they appear in person. The Democratic Party had been planning to expand participation in its 2024 caucuses, to let people vote by mail. The bill probably would be held unconstitutional if Governor Kim Reynolds signs it. The U.S. Constitution protects freedom of association for political parties, and Iowa parties administer and pay for their own caucuses.

New York: has not decided when its presidential primaries will be held. But political observers are predicting that the legislature will pass a bill setting them on April 2. In 2020, the state didn’t hold them until June 23. But in 2016, they were held on April 19.

California: on May 18, AB 421 was amended. Originally it outlawed paying initiative circulators on a per-signature basis, and also provided that 10% of the signatures must come from volunteers. As amended, it only outlaws paying circulators on a per-signature basis for initiative campaigns that agree to collect 5% of the signatures from volunteers. So far it has passed the Assembly Elections Committee but has made no other headway.

Florida: on May 12, the legislature adjourned without passing the bill to require initiatives to receive 66.67% of the vote.

Missouri: on May 12, the legislature adjourned, without passing HJR 43. It would have required initiatives to pass with 57%.

Ohio: on May 10, the legislature passed SJR 2. It would require constitutional initiatives to pass with 60%. It also says an election should be held on August 8 for voters to vote on it. Two lawsuits have already been filed against the bill. One says the wording of the measure is biased; it says the measure would "elevate" the standards to pass an initiative.

Florida has an unusual "resign to run" law. It says if an elected office-holder runs for another office, he or she must resign from the original office, whether he or she wins or loses for the new office. On May 24, Governor Ron DeSantis signed SB 7050, which repeals the law as applied to presidential candidates.

The chart below shows the number of minor party and independent candidates who have appeared on the general election ballot for Governor and U.S. Senator in each state, for the period 2012 to the present.

The chart shows that no such candidates have appeared on the ballot in either California or Washington, in the years since top-two systems have existed in those states. But every other state has had such candidates in the same period.

No federal court has ever upheld the California top-two system.

In Williams v Rhodes, 393 U.S. 23 (1968) the U.S. Supreme Court ruled that it is unconstitutional for a state to ban all minor parties from the ballot.

The Court has never contradicted that conclusion. Even in Jenness v Fortson, 403 U.S. 431 (1971), the Court upheld the challenged law only after noting that the petition procedure has been successfully used in each of the two elections before the case had been filed.

State	Governor							US Senator						TOTAL
~	2012	2014	2016	2018	2020	2022		2012	2014	2016	2018	2020	2022
Al	– –	0	– –	0	– –	1		– –	0	0	– –	0	1	2
Ak	– –	3	– –	2	– –	1		– –	2	4	– –	1	0	13
Az	– –	2	– –	1	– –	0		1	– –	1	1	– –	1	7
Ar	– –	2	– –	1	– –	1		– –	2	1	– –	1	1	9
Ca	– –	0	– –	0	– –	0		0	– –	0	0	– –	0	0
Co	– –	4	– –	2	– –	3		– –	4	5	– –	3	3	25
Ct	– –	1	– –	3	– –	1		1	– –	2	2	– –	0	10
De	2	– –	2	– –	2	– –		2	1	– –	2	2	– –	13
Fl	– –	3	– –	4	– –	2		2	– –	5	0	– –	3	19
Ga	– –	1	– –	1	– –	1		– –	1	1	– –	1	1	7
Hi	– –	2	– –	2	– –	0		0	– –	3	0	– –	3	10
Id	– –	4	– –	2	– –	3		– –	0	1	– –	2	3	15
Il	– –	1	– –	2	– –	1		– –	1	2	– –	3	1	11
In	1	– –	1	– –	1	– –		1	– –	1	1	– –	1	7
Ia	– –	3	– –	2	– –	1		– –	4	3	– –	2	0	15
Ks	– –	1	– –	3	– –	2		– –	2	1	– –	1	1	11
Ky	1	– –	1	– –	1	– –		– –	1	0	– –	1	0	5
La	5	– –	3	– –	1	– –		– –	1	8	– –	8	6	32
Me	– –	1	– –	1	– –	1		4	0	– –	0	2	– –	9
Md	– –	1	– –	2	– –	3		2	– –	1	2	– –	0	11
Ma	– –	3	– –	0	– –	1		0	0	– –	1	0	– –	5
Mi	– –	3	– –	4	– –	4		4	3	– –	3	3	– –	24
Mn	– –	3	– –	2	– –	4		3	2	– –	2	2	– –	18
Ms	0	– –	1	– –	2	– –		2	1	– –	2	1	– –	9
Mo	1	– –	3	– –	2	– –		1	– –	3	3	– –	2	15
Mt	1	– –	1	– –	1	– –		1	1	– –	1	0	– –	6
Ne	– –	1	– –	0	– –	1		0	2	– –	1	1	– –	6
Nv	– –	1	– –	3	– –	2		1	– –	4	3	– –	3	17
NH	1	0	1	1	1	2		– –	0	2	– –	1	1	10
NJ	– –	6	– –	5	– –	3		9	5	– –	6	3	– –	37
NM	– –	0	– –	0	– –	1		1	0	– –	1	1	– –	4
NY	– –	3	– –	3	– –	0		3	– –	2	0	– –	1	12
NC	1	– –	1	– –	2	– –		– –	1	1	– –	2	2	10
ND	2	– –	1	– –	1	– –		0	– –	2	0	– –	1	7
Oh	– –	1	– –	2	– –	0		1	– –	3	0	– –	0	7
Ok	– –	2	– –	1	– –	2		– –	3	3	– –	3	2	16
Or	– –	4	– –	4	– –	3		– –	3	4	– –	2	1	21
Pa	– –	0	– –	2	– –	3		1	– –	1	2	– –	3	12
RI	– –	3	– –	4	– –	3		0	0	– –	0	0	– –	10
SC	– –	3	– –	0	– –	1		– –	2	2	– –	1	0	9
SD	– –	1	– –	1	– –	1		– –	2	0	– –	0	1	6
Tn	– –	5	– –	26	– –	8		7	8	– –	6	2	– –	62
Tx	– –	2	– –	1 – –	2	– –		2	2	– –	1	2	– –	12
Ut	2	– –	2	– –	2	– –		3	– –	2	3	– –	3	17
Vt	3	5	1	5	6	3		5	– –	3	6	– –	4	41
Va	– –	1	– –	1	– –	0		0	1	– –	1	0	– –	4
Wa	0	– –	0	– –	0	– –		0	– –	0	0	– –	0	0
WV	2	– –	3	– –	2	– –		1	3	– –	1	1	– –	13
Wi	– –	2	– –	4	– –	1		2	– –	1	0	– –	0	10
Wy	– –	2	– –	2	– –	1		1	2	– –	1	0	– –	9

This shows the number of minor party & indp. candidates on the ballot. States with gubernatorial elections in years before presidential years are in the column for presidential election years; states with gubernatorial elections in the years after presidential elections are in the midterm column.

State	Requirements		Signatures or Registrations Obtained
	Full Party	Cand.	Libertarian	Green	Consti.	Wk. Fam.	No Labels	Forward
Ala.	42,353	5,000	0	0	0	0	finished	0
Alaska	(reg) 5,000	3,614	already on	*1,505	*already on	0	*already on	0
Ariz.	34,116	(es) #43,000	already on	0	0	0	*already on	*200
Ark.	10,000	5,000	*1,000	already on	0	0	*finished	0
Calif.	(reg) (es) 75,000	219,403	already on	already on	156	0	*50	*29,000
Colo.	10,000	pay fee	already on	already on	already on	0	*already on	*6,000
Conn.	no procedure	#7,500	already on	can’t start	can’t start	can’t start	can’t start	can’t start
Del.	(est.) (reg) 760	(est.) 7,600	already on	*734	*250	*326	0	0
D.C.	no procedure	(est.) #5,200	can’t start	already on	can’t start	can’t start	can’t start	can’t start
Florida	0	145,040	already on	already on	already on	0	*already on	*alreadyon
Georgia	69,884	#7,500	already on	can’t start	can’t start	can’t start	can’t start	can’t start
Hawaii	861	5,745	already on	*100	already on	0	0	0
Idaho	17,359	1,000	already on	can’t start	already on	can’t start	can’t start	can’t start
Illinois	no procedure	#25,000	can’t start	can’t start	can’t start	can’t start	can’t start	can’t start
Indiana	no procedure	#36,944	already on	in court	0	0	0	0
Iowa	no procedure	#3,500	already on	0	0	0	0	0
Kansas	19,890	5,000	already on	0	0	0	*finished	0
Ky.	no procedure	#5,000	can’t start	can’t start	can’t start	can’t start	can’t start	can’t start
La.	(reg) 1,000	#pay fee	already on	already on	221	0	0	0
Maine	(reg) 5,000	#4,000	*1,900	already on	0	0	(reg) *7,000	0
Md.	10,000	10,000	already on	*200	0	0	0	0
Mass.	(est) (reg) 49,000	#10,000	already on	(reg) 3,991	(reg) 330	(reg) 750	0	*400
Mich.	44,478	30,000	already on	already on	already on	0	*1,000	0
Minn.	(est) 130,000	#2,000	0	0	0	0	0	0
Miss.	be organized	1,000	already on	already on	already on	0	0	0
Mo.	10,000	10,000	already on	*1,500	*500	0	0	0
Mont.	5,000	#5,000	already on	unsettled	0	0	0	0
Nebr.	6,605	2,500	already on	0	0	0	0	0
Nev.	10,096	10,096	already on	(reg) 1,654	already on	0	*finished	0
N. Hamp.	18,575	#3,000	0	0	0	0	0	0
N.J.	no procedure	#800	0	0	0	0	0	0
N. M.	3,562	3,562	already on	already on	0	0	0	0
N.Y.	no procedure	#45,000	can’t start	can’t start	can’t start	already on	can’t start	can’t start
No. Car.	13,757	82,542	already on	already on	*9,000	0	*finished	*200
No. Dak.	7,000	4,000	*20	0	0	0	0	0
Ohio	40,345	5,000	0	0	0	0	finished	0
Okla.	35,592	pay fee	already on	0	0	0	0	0
Oregon	28,576	23,737	already on	already on	already on	already on	*already on	0
Penn.	no procedure	5,000	can’t start	can’t start	can’t start	can’t start	can’t start	can’t start
R.I.	17,884	#1,000	0	0	0	0	0	0
So. Car.	10,000	10,000	already on	already on	already on	already on	*finished	*3,000
So. Dak.	3,502	3,502	already on	finished	0	0	0	0
Tenn.	56,083	275	0	0	0	0	0	0
Texas	80,778	113,151	already on	already on	in court	can’t start	can’t start	can’t start
Utah	2,000	#1,000	already on	0	already on	0	*finished	*400
Vermont	be organized	#1,000	already on	0	0	0	0	0
Virginia	no procedure	#5,000	can’t start	can’t start	can’t start	can’t start	can’t start	can’t start
Wash.	no procedure	#1,000	can’t start	can’t start	can’t start	can’t start	can’t start	can’t start
West Va.	no procedure	#7,948	already on	already on	0	0	0	0
Wisc.	10,000	#2,000	already on	already on	already on	can’t start	can’t start	can’t start
Wyo.	3,879	3,879	already on	*0	already on	0	0	0
Total States On			34	*16	*13	3	*5	*1

#partisan label permitted. "WK FAM" = Working Families. "(reg.) = registered members. Four years ago at this time, the Libertarians were on in 32 states; Green in 19; Constitution in 14.

On May 3, Vermont state representative Jarrod Sammis announced that he has left the Republican Party and joined the Libertarian Party. He cited foreign policy. Vermont doesn’t have registration by party, so a public announcement is the only way for an individual to change parties.

At some time in its history, the Libertarian Party has had state legislators in Alaska, Maine, Nebraska, Nevada, New Hampshire, Vermont, and Wyoming. No other third party had had state legislators in that many states since the decade of the 1910’s, when the Progressive, Socialist, and Prohibition Parties had that many, either in that decade or somewhat earlier.

On May 9, the Prohibition Party nominated Michael Wood for president, and John Pietrowski for vice-president. The convention was in-person, in Buffalo, New York. Wood lives in California; Pietrowski in Ohio.

On May 3, Jordan Marlowe, Mayor of Newberry, Florida, announced that he had changed his registration from the Libertarian Party to the Forward Party. He had first been elected in 2017 when he was a Democrat. He had switched to the Libertarian Party in 2019, and had been re-elected unanimously inn 2019, 2021, and 2023. The 2023 election had been on April 11, but it was cancelled because only one person was running for any city office. The population is 7,342.

The Oxford Handbook of American Election law is about to be published. It will have a chapter on ballot access laws, written by Law Professor Derek Muller.

On May 16, Colorado Springs elected a registered independent to be its new Mayor. He is Yemi Mobolade. He is the first Mayor of Colorado Springs to not be a registered Republican in 45 years. The election is non-partisan.

Pennsylvania held special elections for state representative on May 16. In the 108^th district, the percentages were: Republican 70.7%; Democratic 25.7%; Libertarian 3.7%. When this district had last voted, in November 2022, only a Republican had been on the ballot.

In the 163^rd district, the percentages were: Democratic 59.5%; Republican 38.8%; Libertarian 1.3%. When this district had voted in November 2022, the percentages had been: Democratic 64.3%; Republican 34.2%; Libertarian 1.6%.

During May, the Common Sense Party began its petition drive for party status in Michigan. The Common Sense Party of Michigan is not affiliated with any other party, and is a centrist party. The Common Sense Party of California is part of the Forward Party.

On May 15, the National Election Commission of Cambodia disqualified the leading opposition party, the Candlelight Party. The action was taken on the grounds that the party had not submitted original copies of various documents; it had only submitted copies. The party says it didn’t have the originals because earlier the police had confiscated them.