TEXAS COURT APPROVEES ELECTRONIC SIGNATURES

BUT IS THIS A VIABLE METHOD FOR SIGNATURE GATHERING?

On June 26, U.S. District Court Judge Robert Pitman, an Obama appointee, issued a ruling in Miller v Doe, w.d.,1:19cv-700. He enjoined enforcement of Texas’ ballot access requirements insofar as they require use of paper petitions for newly-qualifying parties and independent candidates. Electronic signatures may now be used in Texas. No other federal court has ever issued such permanent relief, although in 2020 some courts in other states issued similar orders for the duration of the covid crisis. On July 26 the state filed a notice of appeal to the Fifth Circuit.

The ability to gather signatures on electronic platforms sounds good, but will their use actually help?

I (Bill Redpath) have been skeptical about the efficacy of the attempted collection of e-sigs. I have thought that human face-to-face solicitation of signatures was necessary. I have stated many times, "There is an old saying: Life insurance isn’t purchased, it’s sold." Petitioning is the same.

However, there has been varied experiences with e-sigs.

Illinois, 2020: A lawsuit to force a reduction in the number of signatures needed to place candidates on the ballot led to a U.S. District Court judge’s order that did that, as well as paper signatures (sometimes called "wet signatures"), to be used. The e-sig process was not successful for any candidate, and paper signatures ultimately had to be used for candidates to make the ballot.

Arizona 2018: an online platform operated by the state government was available for candidates for all public offices. It continues in use to the present.

Libertarian gubernatorial candidate Kevin McCormick needed 3,153 signatures of registered voters who were registered either Libertarian or independent, using either e-sigs or paper petitions. Petition signers could sign only one candidate petition per race.

E-sig signers qualified themselves by inputting personal information into the state-run platform. They could not e-sign McCormick’s petition if they were not registered Libertarian or independent.

McCormick got about 1,200 e-sigs over a four-month period. His marketing consisted of Facebook ads and e-mail blasts. The validity rate on those e-sigs was 100%.

He turned in over 2,800 paper signatures, for a total of over 4,000, but the Republican Party challenged him, claiming that he did not have enough valid signatures. He did not receive validity feedback from Maricopa County (Phoenix meto area) until he was entering the courtroom. Maricopa County said his paper signatures contained over 1,000 signatures of registered Republicans, which didn’t count, so he ended up with under the required number.

Even though he had been certified by Facebook as a political advertiser, Facebook suspended his ad campaign six days before the petition deadline. Facebook admitted it made the error in halting his Facebook ad campaign. It is unknown whether this action by Facebook was accidental. McCormick feels certain that if his Facebook ad campaign had lasted to the petition deadline, he would have had enough valid signatures to qualify.

Overall, though, McCormick thinks highly of his-signature experience.

Maryland, 2020: the Libertarian Party and the Green Party had a positive experience with e-signatures in 2020.

Party petition drives, using standard paper petitions, were underway before the March 2020 start of the covid lockdeowns The requirement was 10,000 signatures of registered voters. When covid struck, the paid petition drive stopped. Litigation was filed against the state of Maryland that led to a settlement that reduced the number of required signatures for a newly-qualifying party to 5,000, and which allowed electronic signatures.

Unlike Arizona, there was no state government platform. A website was built by a Green Party volunteer, and statewide registration data that was purchased from the state was uploaded. Registered voters could accesss the website and input personal data to identify themselves, then sign with an e-sig and by typing their name. For each e-sig petition signer, a piece of paper had to be printed out by the Libertarian or Green Party, which was then turned in to the State Board of Elections for validation. The validity rate on the e-sigs approached 100%.

Eric Blitz of the Maryland Libertarian Party estimates that about 4,000 e-sigs were obtained by his party in a three-to-four-month period. About 1,000 came in during the final week. Marketing was done by Facebook ads, e-mails and word of mouth. About $600 was spent on social media ads.

In combination with the paper signatures that were gathered, about 7,700 total signatures were turned in, according to Blitz, who states that there is no way the Libertarian Party would have qualified for the 2020 ballot without the e-sigs. He emphasizes that simplicity in website construction is essential. One must ask for voters to make as few clicks as possible wensigning an e-sig petition, Blitz said.

I also spoke with Andy Ellis of the Maryland Green Party, which also succeeded in getting on the 2020 ballot.

The Green Party used social media ads first and got a "take rate" between 1% and 3%. They then used phone banks to call people and ask them to go to the website. Direct social media asks also worked.

The party used a "relational organized outreach", by asking e-sig petition signers to reach out to 15 Maryland people htey knew, and ask them to sign online.

Candidates asking voters to sign online made a big difference, according to Ellis. Even a couple of elected Democrats contacted people they kew, asking them to sign the Green Party petition, and that led to a big bump in the e-sig number.

E-sig petition signers were asked to provide their phone number and e-mail address. The website told signers that they would only be contacted about the e-sig signing process and nothing else. Each day the party got a list of "rejected" e-sig petition signers, then reached out to each person (preferably by phone) to walk them through the online signing process.

Mr. Ellis was also very pleased with this online e-sig proces.

The Ujima People’s Progress Party also used this e-sig processs but did not get enough signatures to qualify for the ballo.

After the 2020 election, the e-sigs have not been legal in Maryland. There is an effort to pass HB 1112, which would legalize e-sigs permanently, but so far it has not advanced.

On June 25, the Oregon legislature passed HB 2004, which provides that the voters will be asked in November 2024 if they want to use ranked choice voting for all federal primaries and general elections, as well as statewide state office. The vote in the Senate was 17-8; in the House it was 34-17. All the "yes" votes were from Democrats, except that one Republican Senator also voted for the bill. The Governor does not need to sign the bill.

The bill passed on the last day of the 2023 legislative session.

If the voters pass it, it will become effective on January 1, 2028. It only requires a majority in order to pass.

This is the first time any state legislature has passed a bill for ranked choice voting in federal and statewide elections. In the other states with ranked choice voting for federal or state office (Maine and Alaska) the task was done with a voter initiative. For over twenty years, bills in state legislatures to use ranked choice voting have been introduced, but never passed.

The bill does not apply to state legislative races. Anyone can read an interesting interview about the background for getting the bill passed at democracysos.substack.com/p/interview-with-blair-bobier-on-oregon. Blair Bobier is a longtime activist in Oregon for the Green Party and for alternative voting systems. He is interviewed by Steve Hill, another long-time activist for alternate voting sytems.

On July 6, the Maine legislature passed LD 769, and on July 7, Governor Janet Mills has signed it. It eases the definition of a qualified party. The old definition was a group with 5,000 registrants if it is less than four years old but which must have had 10,000 registrants if it is older. The new definition is simpler; it is simply a group with at least 5,000 registrants, regardless of how old it is.

This is the fourth time in a row that Maine has eased the definition of a qualified party. Starting in 1976 it was a group that had polled 5% of the vote for the top office on the ballot (president in presidential years and governor in midterm years). In 1999, due to Green Party lobbying, it was changed to a group that had polled 5% at either of the last two elections.

Then, in 2009, it was changed from a vote test to a registration test. The registration test was odd: a party was something with at least 10,000 registered members who had actually cast a ballot in the preceding election. Effectively this meant a party needed about 14,000 registered members. The law was tough on election officials; it was a lot of work to know if a party had 10,000 members who had voted.

In 2017, the law was changed to a group with 10,000 registered members, whether they cast a vote or not; and if the party was in its first four years of legal existence, it needed 5,000 registrants to remain on.

LD 769 is the only bill to have passed in any state in 2023 that makes it easier for a party to remain ballot-qualified. The Maine Libertarian Party lobbied for this bill. The Maine law is still not easy to comply with, but it is easier now than at any time since 1976.

Between 1891 and 1976, the law only required a party to poll 1% for the office at the top of the ballot in order to stay on the ballot.

On July 11, U.S. District Court Magistrate Michael Roemer, an Obama appointee, issued an opinion in Meadors v Erie Co. Board of Elections, w.d., 1:21cv-982. The opinion upholds the New York independent petition deadline, which was moved in 2019 from August to May. The deadline is 28 days before the June primary. The case had been filed in 2021 by the incumbent Mayor of Buffalo, Byron Brown, who had just lost the Democratic primary and wanted to then be an independent candidate. New York has never banned "sore losers", so the only impediment to Brown’s getting on the ballot was the deadline.

The opinion expresses the viewpoint that it is not fair to the major parties if independent candidates can get on the ballot after the primaries. That belief was rebutted by the U.S. Supreme Court in Anderson v Celebrezze, the 1983 decision that struck down Ohio’s March 20 deadline for independent presidential candidates. The state of Ohio had argued all the same points made by Magistrate Roemer, bu the U.S. Supreme Court had disagreed.

The Buffalo decision says that Anderson v Celebrezze doesn’t apply to this case because Anderson v Celebrezze involved a presidential election. This ignores the fact that early petition deadlines for non-presidential elections have been declared unconstitutional or enjoined in Alabama, Alaska, Arkansas, Hawaii, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, Montana, Nevada, New Jersey, North Dakota, Ohio, Pennsylvania, South Dakota, and Tennessee. The Arkansas and Pennsylvania decisions against early deadlines involved candidates for state legislature and U.S. House, and both of them were summarily affirmed by the U.S. Supreme Court.

The two summary affirmances: Salera v Tucker, 424 U.S. 959 (Pennsylvania) and Lendall v Jernigan, 433 U.S. 901 (Arkansas).

The decision says that other decisions have upheld earely deadlines, but every case cited by Magistrate Roemer for that point, except two, involved laws in which the filing deadline was on primary day, whereas New York’s deadline is 28 days before the primary. The two decisions cited by Magistrate Roemer that involved deadlines earlier than the primary were from North Dakota and Washington, but in the Washington instance the state law required the candidate to run in the primary, so naturally the deadline had to be earlier than the primary. In New York and 46 other states, independent candidates do not run in the primary. As to the North Dakota precedent, that involved new parties, which had to nominate in their own primary, so again, naturally, the deadline had to be earlier than the primary. But the North Dakota independent petition has always been due in September or even later.

The decision also cites a 1986 Illinois case that upheld an early deadline, but does not reveal that the 1986 decision, Stevenson v Illinois State Board of Elections, was overridden by the Seventh Circuit in 2006 in Lee v Keith.

The decision shows no concern for the voting rights of voters. A majority of Buffalo voters wanted to re-elect Mayor Brown in 2021. This is obvious, because he won the general election with over 60% of the vote via write-ins. A law forcing a candidate who is supported by a majority of voters to carry on a write-in campaign discriminates against those voters. It is more difficult for a voter to cast a write-in vote than to vote for a candidate listed on the ballot. A law that discriminates against a majority of voters is a severe burden on voting rights, yet Magistrate Roemer says the law represents a "slight burden."

The decision says the state interest in an early deadline is to help overseas voters, but the decision admits the overseas ballots don’t need to be mailed until September, so obviously a May petition deadline is not needed. New York had a petition deadline in August, September, or October for its entire history of government-printed ballots, until 2019. There is no election-administration reason whatsoever for a deadline as early as May. On July 21, an appeal was filed. The case number in the Second Circuit is 23-1054.

On June 23, the Arizona Supreme Court issued an opinion in Arizona Petition Patners LLC v Thompson, CR-22-0154. It construes the existing law that regulates how initiative circulators made by paid. The opinion says that although circulators may not be paid on a per-signature basis, high producers can be paid bonuses. Also high producers can receive a higher hourly wage than other circulators.

The U.S. Supreme Court will consider whether to hear Libertarian Party of New York v New York State Board of Elections, 22-893, at its September 26 conference. This is the case that challenges the 2020 changes to the state’s ballot access laws. The Court hasn’t taken a ballot access case filed by a minor party or independent candidate since 1991, so if the Court accepts this case, that will be an event.

The Court will probably also consider Mazo v Way, 22-1033, on the same day, although that is not certain. That case challenges New Jersey laws restricting ballot labels in primaries.

On July 17, U.S. District Court Judge Steve C. Jones, an Obama appointee, issued a 109-page order in Pendergrass v Raffensperger, n.d., 1:21cv-05339. This is a case filed in 2021, challenging the boundaries of Georgia’s U.S. House district boundaries under the Voting Rights Act. The order says the lawsuit cannot be settled unless a trial is held first. It will start on September 5, and is expected to last nine days. Post-trial briefs are due September 25.

If the judge rules that the districts must be redrawn, the legislature would be asked to draw new districts. However, if that happens, the state would probably appeal to the Eleventh Circuit. It is likely that the state will lose, because the U.S. Supreme Court Alabama redistricting opinion, Allen v Milligan, which came out June 8, 2023, required Alabama to redraw its U.S. House districts, and the Georgia and Alabama situations are similar.

The Georgia legislative districts are also under attack, and the lawsuits concerning the legislative districts are combined with the congressional district.

Thus, there is a good chance that the districts won’t be settled until the spring of 2024. If that happens, under several Georgia precedents, the state must reduce the number of signatures for independent candidates, and the nominees of minor parties, for district office. The first such precedent was Busbee v Smith, 549 F.Supp.494 (1982), when a 3-judge court in Washington, D.C., forced Georgia to redraw its two Atlanta-area districts in the spring of 1982. The state then agreed to lower the 5% petition requirement for those two districts to approximately 1.3%, to take account of the shorter petitiong period.

Also in 1982, the Eleventh Circuit required Georgia to extend the petition deadline in a State Senate race, in Citizens Party of Georgia v Poythress, 82-8411.

In 2002, a U.S. District Court forced Georgia to cut the number of signatures for U.S. House in Parker v Barnes, 1:02cv-1883.

Even if the state’s districts are upheld, the precedents would still apply, because they candidates could not know in advance whether the districts are to be upheld or not, so could not realistically be expected to be petitioning.

Georgia is not the only state in which petition requirements may be cut due to late redistricting. It is likely that the Alabama districts won’t be known until spring 2024.

On June 30, the Delaware Senate defeated HB 215, which would have moved the non-presidential primary from September to April. The bill also moved the deadline for a new party to qualify from August to March. And it would have required existing qualified minor parties (which nominate by convention) to have chosen their nominees by March 15.

The names of minor party presidential nominees would need to have been submitted by the Tuesday following that party’s presidential convention, which would have been a problem for any party whose convention ended on a Monday. Libertarian national conventions usually end on Memorial Day Mondays.

In some states there is a dispute as to the legitimate state officers of the Libertarian Party.

In Michigan, where the Libertarian National Committee prefers one faction, the Committee has filed a lawsuit arguing that the party’s national trademark should settle the matter in favor of the LNC’s favored faction. Libertarian National Committee v Saliba, e.d., 5:23cv-11074.

All the briefs have been filed, in the part of the case that asks for injunctive relief.

California(1): o July 6, the Senate Elections Committee passed AB 1227. The bill had already passed the Assembly. It lets Santa Clara County, northern California’s most populous county, use ranked choice voting for its own officers.

California(2): on July 10, the Senate Appropriations Committee passed AB 292. It lets independent voters have an easier process to request the presidential primary ballot of a party that lets independents vote in its presidential primary. The voter can phone, e-mail, text, or fax the county elections office to let them know which ballot the voter wants.

California(3): on July 13, Governor Gavin Newsom signed AB 437, which requires qualified parties to notify the state of their presidential and vice-presidential nominees no later than 75 days before the general election. Oddly enough, neither California previously, nor most other states, have any deadline for this. The bill does not say what should happen if a party misses the deadline.

New York: although the legislature passed A7690 on June 8, it still hasn’t sent the bill to the Governor. It sets the date of the 2024 presidential primary in April. Some newspapers are calling on the Governor to veto the bill, because the non-presidential primary is in June and they say it is wasteful to have them so close in time.

State	Primary Date	Minor Parties That Could Have a Presidential Primary
Ala.	March 5	none
Az.	March 19	Libertarian, No Labels
Ark.	Oct. 30, 2023	none
Cal.	March 5	American Independent, Peace & Freedom, Libertarian, Green
Colo.	March 5	none
Ct.	April 30	none
Del.	April 23	none
D.C.	June 4	Statehood Green
Fla.	March 19	none
Ga.	March 12	none
Ill.	March 19	none
Ind.	May 7	none
Kansas	March 19	none
Ky.	May 21	none
La.	March 23	Independent Party
Me.	March 5	Green Independent
Md.	May 14	none
Mass.	March 5	Libertarian
Mich.	February 27	none
Minn.	March 5	Legal Marijuana Now
Miss.	March 12	none
Mt.	June 4	Libertarian, Green
Neb.	May 14	Libertarian, Legal Marijuana Now
Nev.	February 6	none
N.H.	undetermined	none
N.J.	June 4	none
N.M.	June 4	Libertarian
N.Y.	probably April 2	Conservative, Working Families
No.C.	March 5	Libertarian, Green, No Labels
Ohio	March 19	No Labels
Okla.	Jan. 8, 2024	Libertarian
Ore.	May 21	None
Pa.	Undetermined	None
R.I.	Undetermined	None
So.C.	Feb. 24 & Feb. 3	None
So.D.	June 4	None
Tenn.	March 5	None
Texas	March 5	None
Utah	March 5	Libertarian, United Utah, Constitution, No Labels, Independent American
Vt.	March 5	Progressive
Va.	March 5	None
Wash.	March 12	None
W.V.	May 14	None
Wis.	April 2	None

This chart shows the date of 2024 government-administered presidential primaries, and which parties (besides Republican and Democratic) are entitled to a presidential primary. Some of these parties traditionally do not want a presidential primary.

In South Carolina, parties choose their own primary date; Democrats chose Feb. 3 and Republicans chose Feb. 24. In South Carolina, in theory, qualified minor parties could hold a presidential primary, but they would need to do much of the work to administer their presidential primary, so the qualified minor parties in South Carolina are not listed above.

In some states, additional new minor parties might in the next few months qualify for a presidential primary.

On June 30, the Montana Secretary of State determined that the Green Party is ballot-qualified for 2024. The party had qualified in 2022 by court order, but the matter of its status in 2024 had not been previously addressed. Montana had no statewide offices up in 2022, so it was impossible for the Green Party, or any party, to meet the vote test in 2022. The party had not been on the ballot in either 2018 nor 2020 because the Democratic Party had successfully challenged its ballot status. Ironically it was on the ballot in the 2020 primary, but not the 2020 general election.

The Secretary of State had waited to settle this matter until after the party had re-organized and elected new state officers.

No Labels: during July, election officials determined that No Labels is a qualified party in Utah, and is qualified in Arkansas for purposes of the presidential election, although not other office.

Libertarian: has 11,000 signatures in Arkansas, and 150 in North Dakota.

Green: has 2,700 signatures in Missouri, and 1,000 in Maryland.

Constitution: has 13,000 signatures in North Carolina and 300 in Missouri.

Forward: has 500 signatures in North Carolina.

On June 28, Lowell Weicker died at the age of 92. In 1990, he had been elected Governor of Connecticut as the nominee of a party that he created, A Connecticut Party. He was the only person ever elected Governor of Connecticut who was not the nominee of a major party.

On May 2, Florida recognized the Boricua Party. "Boricua" means someone of Puerto Rican descent. Florida has approximately 500,000 registered vorters who are from Puerto Rico. The party’s website is still under construction. Florida now has fifteen qualified parties, the most of any state.

Robert F. Kennedy, Jr., is seeking the Democratic nomination for president. On June 29, he was speaking at a NewsNation town hall. He was asked if he might run as an independent. He said that is not his plan, but that if President Biden is renominated, Kennedy will not endorse him. Many RFK Jr. supporters are urging him to run as an independent.

Virginia holds its legislative elections in November of odd years. For the November 2023 election for State Senate, there are three independents, and one Libertarian. For Delegate, there are two Libertarian, and three independents.

Two years ago, there were no State Senate election. In Delegate elections, there were five independents, four Libertarians, and one nominee of the Independent Green Party.

On July 13, Mark Cuban said he will not seek the presidential nomination of No Labels Party. He is a Texas businessman, age 65, who is best known for owning the Dallas Mavericks basketball team. However, he has many other businesses as well. He has thought about running for president outside the two major parties in 2016 and 2020 as well. He is a supporter of the Center for Competitive Democracy, which works for more lenient ballot access laws.