STATUS OF PENDING BALLOT ACCESS LAWSUITS

MOST CASES ARE MOVING VERY SLOWLY

Here is the status of pending ballot access cases, most of which are moving very slowly:

Arizona: oral argument will be held in Arizona Democratic Party v No Labels on Tuesday, July 11, at 9:15 a.m. This is the case in which the Democratic Party argues No Labels is not a qualified party, because its representatives submitted their affidavits too early.

Georgia: Cowen v Raffensperger is the case that challenges the 5% (of the number of registered voters) petition requirement for minor party and independent candidates for U.S. House on equal protection grounds. All briefs on the equal protection phase of the case had been submitted to the U.S. District Court by January 4, 2023, but the judge has not yet acted.

Georgia(2): Rose v Raffensperger is the case in the Eleventh Circuit over whether Public Service Commissioners should be elected statewide or by districts. This is a ballot access issue, because if the PSC elections are held on a statewide basis, the Libertarian Party nominees for that office are on the ballot with no petition needed. But if PSC members are elected by districts, the Libertarian Party is not on for those races. The party remains ballot-qualified for statewide office by polling approximately 2% of the vote for a statewide nominee. In 2024 the only statewide race besides Public Service Commissioner is president.

Therefore, if PSC is not on the statewide ballot, it will be difficult for the Libertarians in 2024 to meet the vote test. The only Libertarian presidential nominee who ever polled enough votes in Georgia to preserve the party’s ballot status was Gary Johnson in 2016.

In the past the party always preserved its qualified status with the vote for some other statewide office. It is always easier for a minor party to poll a bigger percentage of the vote when voters aren’t passionately concerned about which major party wins.

The Eleventh Circuit heard Rose on December 15, 2022, and so far there is no decision.

Indiana: all the briefs will have been filed in U.S. District Court by the first week in July 2023, in Green Party v Sullivan. This is the case that challenges the number of signatures required for a statewide independent or minor party candidate. No such petition has succeeded in Indiana in over 20 years.

New Jersey: two cases are pending against the state’s discriminatory ballot format, which exists in both primary elections and general elections. Conforti v Hanlon is pending in U.S. District Court. On May 31, 2022, the judge refused to dismiss the case and preparations are underway for a trial.

In Mazo v Way, which also concerns primary ballots, but specifically the ban on certain words, the case lost in the lower federal courts and is now before the U.S. Supreme Court. On June 5 that Court asked the state to respond to the cert petition, a sign that the Court is interested in the case. Mazo is represented by a former Solicitor General of the United States, Paul D. Clement.

New York: Meadors v Erie County Board of Elections is the lawsuit against the May petition deadline for independent candidates and the nominees of unqualified parties. It is pending in U.S. District Court. All briefs had been filed by April 12, 2023.

New York(2): Libertarian Party of New York v New York State Board of Elections is the lawsuit over the ballot access changes of 2020, which tripled the number of signatures for the statewide petition for independent candidates and the nominees of unqualified parties, and more than tripled the number of votes needed for a group to be a qualified party. It is pending in the U.S. Supreme Court. The state has twice asked that Court for a time extension for its brief, and must file it by June 30. If the Court wants to hear this case, we won’t find out about that until late September 2023.

North Carolina: in 2022 a U.S. District Court put the Green Party on the ballot, but the issue of declaratory relief is still pending. North Carolina Green Party v State Board of Elections. The issue is whether the State Board can keep a party off the ballot because it thinks the petition doesn’t have enough valid signatures, even though the County Boards (which do the work of checking the signatures) have already determined that the petition is valid.

Texas: Miller v Doe is the lawsuit filed in 2019 against the ballot access laws that affect independent candidates and new or previously unqualified parties. On October 4, 2022, the U.S. District Court had ruled that Texas must permit electronic signatures, but otherwise upheld the laws, without even mentioning the great bulk of evidence. The judge asked both sides to come to an agreement on the details of how the electronic signature part of the decision should be implemented. Both sides submitted ideas for that, but they didn’t match, and nothing has happened in the case since.

Texas(2): Bilyeu v Esparza is a lawsuit filed in 2021 against new laws that require individuals seeking the nomination of a party that nominates by convention (e.g., Green and Libertarian) to pay a filing fee. It is still in U.S. District Court and is on hold until August 1, 2023.

Wyoming: Frank v Lee concerns the ban on petitioning at the polls within 300 feet of the entrance to the building. The U.S. District Court had struck it down. The state had appealed and the Tenth Circuit heard oral argument on May 17, 2022. There is still no decision, over a year later.

Federal law:Stein v Federal Election Commission is a lawsuit over the federal rules for receiving primary season matching funds. The law is not clear about the period for receiving private contributions that the government will match. The case was argued in the U.S. Court of Appeals, D.C. Circuit, on January 18, 2023, and there is no decision yet.

Connecticut: on June 7, the legislature adjourned without passing HB 6908. It would have required parties that nominate by convention to have sent in the names of their nominees by mid-August. Current law requires their names by early September. The bill had passed the House but the Senate didn’t take it up.

New York: on June 10, the legislature adjourned without passing any bill to ease the ballot access laws. A3312 would have reduced the statewide petition and S1031 would have eased the definition of a qualified party. But the bills will still be alive when the session reconvenes in January 2024.

Vermont: on June 20, the Senate killed HB 429 by sending it back to committee. It had already passed both houses, but the versions of the bill in each house differed so it needed to pass the Senate again. It would have outlawed "sore losers".

Hawaii: in a surprise, the legislature adjourned without passing any bill to provide for a presidential primary. One bill had passed both houses, but the two versions didn’t agree, and the bill then died.

Idaho: the regular session of the legislature passed a flawed bill moving the presidential primary from March to May, but repealed all the instructions on how the primary should be held. No special session to fix the problem has been called, so probably there will be no presidential primaries in 2024.

Nevada: on May 26, the Nevada Republican Party filed a lawsuit in state court to prevent the state from holding a Republican presidential primary. The party wants to use the traditional caucus. Nevada Republican Party v State, First Judicial District, 23-0000051-1B. The Arizona Democratic and Libertarian Parties won a similar lawsuit in 1996.

New Hampshire: on June 8, the House tabled CACR 9, which would have added a clause to the State Constitution saying New Hampshire must hold the nation’s earliest presidential primary. The bill had passed the Senate unanimously.

New York: on June 8, A7690 passed the legislature, setting the 2024 presidential primaries on April 2.

South Carolina: on June 17, the Republican Party chose February 24 as the date of its presidential primary in 2024.

On June 6, the Michigan House Elections Committee passed HB 4156, the bill to add Michigan to the National Popular Vote Plan.

On June 8, the U.S. Supreme Court issued an opinion in Allen v Milligan, 21-1086. It upheld the part of the Voting Rights Act that has long been used to require states to draw U.S. House and legislative districts with majorities of African-American voters, under certain conditions.

The outcome was a surprise. Alabama has originally lost the case in U.S. District Court, and the state was ordered to draw two Black-majority U.S. House districts. But the U.S. Supreme Court had stayed the lower court decision, so the 2021 plan adopted by the legislature, with only one Black-majority district, was used in the 2022 election. Now Alabama must redraw its districts.

The decision gives new life to a similar lawsuit pending in Georgia, Georgia State Conference of the NAACP v Georgia, n.d., 1:21cv-5338. On June 8, the three judges hearing that case ordered a new round of briefing, for both sides to address the U.S. Supreme Court opinion from Alabama.

Whenever the districts in Georgia are unsettled even as late as the beginning of the petitioning season for district petitions, courts have ordered Georgia to reduce the number of signatures, proportionate to the amount of time lost. The district petitioning period in Georgia runs from early January to early July. In 1982 the number of signatures for U.S. House was cut down to only one-fourth the normal number, due to very late redistricting in the two Atlanta districts. Also in 2002, when redistricting wasn’t settled until March, a U.S. District Court ordered the number of signatures to be reduced to two-thirds of normal.

Other states in which U.S. House districts may need to be redrawn include North Carolina, South Carolina, and Louisiana.

In-Depth Analysis of California’s Top-Two System, by Professor Richard C. Barton, 40 pages, published by the Unite Institute in June 2023.

The Unite Institute hired Professor Richard C. Barton, of Cornell University in New York, to write a report to explain the advantages of a top-two system. When one writes something designed to persuade the reader to support an idea, ideally one should mention the perceived problems with the idea, and then explain why the perceived problems do not exist, or are of minimal importance.

Top-two systems have two obvious flaws: (1) if the majority party runs too many candidates in the primary, and the minority party only runs two, it is possible for the majority party to be disenfranchised in the general election; (2) top-two systems bar minor parties from the general election ballot, except in races in which only one major party runs someone.

Barton’s report does not mention the first objection. Although it is not common for the majority party to be locked out of the general election, it is not that rare. It has happened in California four times: in 2012, the 31^st U.S. House district; in 2018, the 76^th Assembly district; in 2020, the 38^th Assembly district; and in 2022, in the 4^th State Senate district. It also happened in Washington state in 2016 in the State Treasurer’s race.

The problem that the majority party might be kept off the general election ballot is so well-known, that ever since California voters voted for a top-two system in 2010, no other state has put it in place. Voters have defeated top-two systems since then in Arizona in 2012, Oregon in 2014, and South Dakota in 2016.

No ballot measure for a top-two system has appeared on any state’s ballot since 2016, because proponents of the idea have since shifted to supporting top-five or top-four, combined with ranked choice voting. Top-four and top-five measures have appeared in Alaska and Nevada, and both have passed.

Professor Barton’s Report does mention the second problem with top-two, that it keeps minor party candidates off the general election ballot. But he is cavalier about that problem. He writes, "Third party performance (in the top-two states) was quite weak before the introduction of Top Two and is a bit weaker under Top Two."

In California in 2010, the last election before top-two began, the minor party vote for every statewide office on the ballot was over 500,000 votes, and for two of the statewide offices, it was over 1,000,000 votes. Since then, the minor party vote for all statewide offices (except president, which is outside the top-two system) has been zero. It is not just that the minor party vote has become "weaker"; minor party voices in the general election has been shut down. Professor Barton seems not to have noticed that many people run for office, not because they expect to win, but because they have ideas to express about how to improve society, and they rely on campaigning to give them a voice.

The Report makes these arguments in favor of top-two: (1) that it improves turnout in primaries; (2) that it elects more moderate office-holders; (3) that it creates more competitive elections; (4) that it has improved the attitude of Californians toward their state government; (5) that a larger share of voters vote for a winner.

California voter turnout in primaries has not improved since top-two was adopted. Here is the percentage of registered voters that have voted in mid-term primaries, since the beginning of such primaries:

YEAR	TYPE	TURNOUT
1918	Closed	56.21%
1922	Closed	55.99%
1926	Closed	55.64%
1930	Closed	59.51%
1934	Closed	59.34%
1938	Closed	59.90%
1942	Closed	47.16%
1946	Closed	50.76%
1950	Closed	63.76%
1954	Closed	56.22%
1958	Closed	65.68%
1962	Closed	63.53%
1966	Closed	64.67%
1970	Closed	62.23%
1974	Closed	53.99%
1978	Closed	68.88%
1982	Closed	52.73%
1986	Closed	40.45%
1990	Closed	41.49%
1994	Closed	35.05%
1998	Blanket	42.49%
2002	Semi-closed	34.59%
2006	Semi-closed	33.63%
2010	Semi-closed	33.31%
2014	Top-two	25.17%
2018	Top-two	37.54%
2022	Top-two	33.20%

Figures are from the California Secretary of State’s publication, Statement of Votes, June 7, 2022 Primary Election. California had a primary in 1914 but the data is not available.

The chart does not include presidential primaries, because the top-two system has no effect on presidential primaries. It also does not include the June 2008 primary because no statewide offices were on the ballot; the presidential primary that year had been in February.

Two of the top-two primaries, 2014 and 2022, had the lowest primary turnouts in the history of California midterm primaries. 2018 was somewhat higher but still lower than all the primaries earlier than 1994.

The Report says that top-two elects more moderate office-holders. This is a very complex area, and the Report acknowledges that some political science studies contradict that conclusion.

The Report says that top-two creates more competitive elections, and that is true for district office, but not for statewide office. There are many U.S. House and legislative districts that are overwhelmingly strongly Democratic. In those districts, there are commonly two Democrats and no one else on the general election ballot, so those two-Democrat races tend to be closer than races in that type of district between a Democrat and a Republican.

The Report says that top-two has improved the attitude of Californians toward their state government. The Report ought to point out that in 2008-2012, California had a severe budget crisis caused by the failure of the legislature to pass a budget on time. See the Wikipedia article, "2008-2012 California budget crisis." That problem was solved in November 2010 when the voters passed Proposition 25, which repealed the requirement that the budget pass with a two-thirds vote in each house of the legislature. Ever since, the budget has been on time; there has been no need for the state to pay its employees in script, or to furlough state employees. That is why Californians grew more satisfied with their state government since top-two passed.

The Report says that under top-two, a larger share of voters vote for a winner. That is true, but it is undermined by the fact that under top-two, so many voters leave their general election ballots blank.

The Report acknowledges this point, but seems to show a certain amount of scorn toward such voters. California supporters of top-two have sometimes candidly expressed the viewpoinr that the only legitimate reason to vote for a candidate is to help that candidate win. But the meaning of a voter’s vote is a matter best left to each individual voter. Some voters are more motivated to "send a message" to the world, in support of a particular idea, than to help choose the winner. Every voter deserves equal respect.

Maine: on June 21, LD 1917 was defeated in the House. It received a majority, but it needed two-thirds. The vote was 79-65. It would have expanded the use of ranked choice voting. Currently it exists for all primaries, but in general elections it only applies to federal office.

Virginia: on June 20, Virginia held primaries for legislature and county office. Arlington County used ranked choice voting for County Board, for the Democratic primary only. This was the first time that RCV had been used in a government-administered election in the state.

On May 25, the U.S. Senate confirmed Nancy Abudu to be a judge on the Eleventh Circuit, which covers Florida, Georgia, and Alabama. She is a former ACLU staff attorney who handled many voting rights cases. She is the first Biden appointee to the Eleventh Circuit. The Eleventh Circuit has twelve full-time judges.

On June 14, the U.S. Senate confirmed Dale Ho to be a judge in the southern district of New York. He is a former ACLU staff attorney for the Voting Rights Project.

On June 2, the Republican National Committee released rules for presidential primary debates. The poll requirement is only 1%. In 2016 the party didn’t specify a percentage, but said the top ten candidates in polls were eligible.

Connecticut: the legislature adjourned without passing any bill to replace "faithless" presidential electors.

Delaware: on June 9, Governor John Carney signed SB 57.

New York: on June 8, the legislature passed SB 438.

The chart below shows the highest percentage of the vote ever received by a Libertarian for Governor or U.S. Senator in each state. Races with only one major party nominee are excluded.

The chart shows that Tennessee’s ballot access law, which effectively denies the "Libertarian" ballot label to all Libertarian nominees, has injured the Libertarian Party of Tennessee. Tennessee only requires 25 signatures for an independent candidate, but 56,083 signatures for a party. Naturally minor parties qualify their nominees as independents; no party has ever completed the party petition since 1968 because it is so difficult. The chart shows that Tennessee is one of only three states in which no Libertarian for Governor or U.S. Senator has ever polled as much as 1%. In the other two states, the Libertarian Party has run very few candidates for Governor or U.S. Senator, which explains why they are also on the list. But the Tennessee Libertarian Party has run dozens of candidates for those two offices during its history, going back to 1976.

State	Percentage	Year	Name	Office
Alaska	29.23%	2016	Joe Miller	Senator
New Mexico	15.38%	2018	Gary Johnson	Senator
Indiana	11.44%	2020	Donald Rainwater	Governor
Wisconsin	10.46%	2002	Ed Thompson	Governor
Montana	6.56%	2012	Dan Cox	Senator
Virginia	6.55%	2013	Robert C. Sarvis	Governor
Nebraska	6.37%	2020	Gene Siadek	Senator
Missouri	6.07%	2012	Jonathan Dine	Senator
California	5.46%	1978	Edward Clark	Governor
Arizona	5.05%	1982	Sam Steiger	Governor
Kansas	4.99%	2020	Jason Buckley	Senator
New Hampshire	4.87%	1990	Miriam Luce	Governor
New Jersey	4.72%	1997	Murray Sabrin	Governor
Oregon	4.59%	2002	Tom Cox	Governor
Pennsylvania	4.57%	1992	John F. Perry	Senator
Wyoming	4.47%	2022	Jared J. Baldes	Governor
Vermont	4.38%	2014	Dan Feliciano	Governor
Michigan	4.22%	1994	Jon Coon	Senator
South Dakota	4.22%	2022	Tamara J. Lesnar	Senator
West Virginia	4.17%	2018	Rusty Hollen	Senator
Georgia	4.16%	2016	Allen Buckley	Senator
Idaho	4.07%	2014	John T. Bujak	Governor
Hawaii	4.03%	1994	Richard Rowland	Senator
Kentucky	4.00%	2020	Brad Barron	Senator
Arkansas	3.96%	2016	Frank Gilbert	Senator
North Dakota	3.90%	2016	Marty Riske	Governor
Florida	3.75%	2014	Adrian Wyllie	Governor
Colorado	3.62%	2016	Lily Tang Williams	Governor
North Carolina	3.57%	2016	Sean Haugh	Senator
Utah	3.52%	2020	Daniel Cottam	Governor
Oklahoma	3.44%	2018	Chris Powell	Governor
Illinois	3.35%	2014	Chad Grimm	Governor
Alabama	3.25%	2022	Jimmy Blake	Governor
Massachusetts	3.13%	2008	Robert J. Underwood	Senator
Nevada	2.84%	1980	Allen Hacker	Senator
South Carolina	2.74%	2014	Victor Kocher	Senator
Ohio	2.64%	2000	John McAlister	Senator
Washington	2.63%	2000	Jeff Jared	Senator
Iowa	2.37%	2022	Rick Stewart	Governor
Texas	2.34%	2008	Yvonne Adams Schick	Senator
Mississippi	1.77%	2020	Jimmy Edwards	Senator
New York	1.68%	1992	Norma Segal	Senator
Connecticut	1.66%	2012	Paul Passarelli	Senator
Maryland	1.50%	2022	David Lashar	Governor
Louisiana	1.22%	2011	Scott Lewis	Governor
Delaware	1.09%	2016	Sean L. Goward	Governor
Minnesota	1.03%	2018	Josh Welter	Governor
Tennessee	.90%	2012	Shaun Crowell	Senator
Maine	.80%	2012	Andrew Ian Dodge	Senator
Rhode Island	.79%	2022	Elijah J. Gizzarelli	Governor

This chart excludes races in which only one major party ran a nominee. This chart is to show the harm done when party nominees are deprived of the party label.

On June 5, Professor Cornel West said he would seek the 2024 presidential nomination of the People’s Party. On June 13, he said he would seek the Green Party nomination.

The People’s Party is only ballot-qualified in Florida, and even in Florida, it isn’t on for president, because of a 2011 Florida law that says qualified parties can’t run for president unless the Federal Election Commission recognizes them as a "National Committee", or unless the party submits a petition signed by 1% of the registered voters, which is over 140,000 signatures. The only FEC-recognized national committees are Republican, Democratic, Libertarian, Green, Constitution, Reform, Natural Law, and Socialist. The FEC won’t recognize a group as a national committee until after it has run a presidential nominee and congressional candidates in several states. Thus the Florida law discriminates against new parties, because they can never be FEC-recognized.

The Green Party is on in fifteen states and is petitioning in others. It is possible for West to be the nominee of more than a single party. For example, in 1924 Robert La Follette was the nominee of the Farmer-Labor Party, the Socialist Party, and also he was the nominee of his Progressive committee, which did not consider itself a party. In eight states he had more than a single ballot line, with varying party labels.

On June 2, the American Solidarity Party said that its presidential nominee is Peter Sonski. He was nominated through online voting that occurred May 24-June 1. Five candidates competed, and Sonski received 52% of the vote. The party had its first presidential candidate in 2016, receiving 6,474 votes for Michael Maturen. In 2020 it received 39,230 for Brian Carroll.

On June 19, Denise Chesebrough, Mayor of Stonington, Connecticut, said she will run for re-election this year as the nominee of the Forward Party, and she will not be the nominee of any other party. Technically her office is "First Selectman". In 2021, when she was last elected, she was the nominee of both the Republican and Democratic Parties. In 2023 she already has a Democratic opponent and a Republican opponent. The population of Stonington is 18,335.

New Jersey holds its legislative elections in November of odd years. For the November 2023 election for State Senate, there are three Libertarians, one Socialist Worker, and five independent candidates. For Assembly, there are two Libertarians, one Socialist Worker, one Green, and five independents.

Two years ago, when there were Assembly elections but not State Senate elections, there were four Libertarians, one Green, and six independent candidates.

Bill Redpath is the new editor of this newsletter. He lives in Illinois; his contact information is wredpath2@yahoo.com; (703) 864-2132. He has been passionately interested in ballot access for several decades. Richard Winger is retiring but will continue to contribute content.

Bill is arranging for subscribers who prefer a pdf of the newsletter to be e-mailed to them. The price will continue to be $18 per year, for 12 issues, at least for the time being, no matter which delivery option is chosen. Subscribers have already received a postal letter, asking for a choice of delivery system, and those who chose electronic will have that implemented starting with the August 1, 2023 issue.