NO LABELS WINS ARIZONA BALLOT ACCESS LAWSUIT

On August 8, an Arizona trial court ruled that No Labels is a qualified party. The Arizona Democratic Party had filed a lawsuit to remove the party, but the Democratic Party lost the lawsuit and is not appealing. Arizona Democratic Party v No Labels, Maricopa Superior Court, cv2023-4832.

Democrats had argued that No Labels did not follow the law, which says, "(The petition) shall be verified by the affidavit of ten qualified electors of the state, asking that the signers thereof be recognized as a new political party."

This law was passed in 1912, and it had never been interpreted to mean that the ten representatives of the party were, by their signatures, certifying that the petition had enough valid signatures. Always before, new parties submitted the ten affidavits early in the process, before the petitioning process had been finished. No Labels followed the tradition, and their representives submitted their affidavits before the petition had been submitted. The Democratic Party had argued that the paperwork had been filed too early, and was therefore invalid.

The Democratic Party also argued that ten affidavits used incorrect language.

But the judge said that the law does not mandate that the affidavits be filed after the petition is submitted. She also said the law does not mandate the exact wording on the affidavits. Finally, she said that even if the above points weren’t true, the fact that the Secretary of State had put the party on the ballot should have settled the matter, and that there is no provision in Arizona law for anyone to sue the Secretary of State over his or her decision to put a party on the ballot.

This is the third Democratic Party attempt to block a minor party from the ballot that has failed in this decade. In 2020, the Democratic Party sued to remove the Green Party from the Montana ballot, and that worked temporarily. But then the Ninth Circuit ruled that the Montana law was unconstitutional, and as a result the Green Party was placed on the ballot for 2022 and 2024.

In 2022, the Democratic Party majority on the North Carolina Board of Elections refused to put the Green Party on the ballot, even though the county boards had determined there were enough valid signatures. But the Green Party sued in federal court and won the case, so that the Green Party was on the North Carolina ballot in 2022 and also 2024.

The Democratic Party has a long history of filing challenges or lawsuits to keep minor parties off presidential ballots. Democrats took such actions in 1936 against the Union Party and the Socialist Labor Party; in 1940, against the Communist Party and the Socialist Labor Party; in 1948, against the Progressive Party; in 1952, against the Progressive Party; in 1956, against the Socialist Workers Party and the Socialist Labor Party; in 1964, against the Socialist Labor Party; in 1976, against independent candidate Eugene McCarthy; in 1980 against independent candidate John B. Anderson; in 2004 against independent candidate Ralph Nader.

By contrast, the Republican Party has almost never filed challenges in presidential elections, except in Pennsylvania in 208 and 2012 against the Libertarian and Constitution parties. Possibly there are other instances.

On August 14, U.S. District Court Judge James R. Sweeney, a Trump appointee, upheld the Indiana statewide petition requirement for independent candidates and the nominees of unqualified parties. Indiana Green Party v Morales, s.d., 1:22cv-518. The decision is ten pages. Even though it admits that the U.S. Supreme Court said in Anderson v Celebrezze that lower courts are supposed to "identify and evaluate the precise interests put forward by the State as justifications for the burden", the only state interest identified in the decision is the need to keep ballots from being too crowded. The decision says the state interests are "avoiding voter confusion, ballot overcrowding, and the like."

Judge Sweeney ignored the evidence in the case that says that states which require more than 5,000 signatures will never have a crowded ballot. That evidence is based on the entire history of elections in every state, and assumes that a ballot with eight or fewer candidates for a single office is not so many as to confuse voters. Justice John Harlan had made this observation in Williams v Rhodes.

Judge Sweeney quoted extensively from Storer v Brown, which talks about the dangers of "unrestrained factionalism", but the part of the decision he quoted relates to a law forbidding candidates from qualifying as an independent if they had recently been a party member, an issue that has nothing to do with the number of signatures. He ignored the part of Storer v Brown that says lower courts should evaluate petition requirements on how often they are used. No statewide petition has qualified in Indiana for 23 years, since Pat Buchanan’s petition in 2000. The Green Party will appeal.

A year ago, the Moderate Party of New Jersey filed a lawsuit, seeking to strike down the state’s ban on fusion (the ability of two parties to jointly nominate the same candidate). In re Tom Malinowski Petition for Nomination for General Election, Superior Court, Mercer Co., App. Div., A-3542-21T2.

Recently the Moderate Party asked the State Supreme Court to take up the case now, and bypass the lower court. The party hopes to win the case in time for the 2024 election. The 2024 primary is June 4.

New Jersey banned fusion in 1921. The lawsuit argues that the ban violates the New Jersey Constitution’s guarantee of freedom of association. So far, the only action in the case has been a ruling denying the state’s motion to dismiss the case.

The plaintiffs not only want to legalize fusion; they want to legalize the type of fusion that lets a voter decide which party to support. This is called "disaggregated fusion", and is used in Connecticut and New York, and was used in South Carolina until it was banned last year.

The other type of fusion, "aggregated fusion", is used in Idaho, Massachusetts, Mississippi, New Hampshire, Oregon, Pennsylvania, and Vermont. "Aggregated fusion" lists a candidate only once on the ballot, but all party labels are printed next to his or her name. Generally the state prints the candidate’s own party first, and then prints the name of any other party that also nominated that candidate.

Many other states also allow fusion for president, but for no other office. This is because the anti-fusion laws in many states are not worded to include a ban on presidential fusion.

Lee Drutman, an election law expert, recently published a scholarly paper in support of fusion titled "More Parties, Better Parties: the Case for Pro-Parties Democracy Reform". The case for fusion is partly pragmatic, as the paper explains. But the case for fusion is also based on the principle that government should not dictate to political parties whether or not they wish to nominate candidates jointly. Disaggregated fusion was legal in all states before the advent of government-printed ballots in the 1890’s, because before then, government had no ability to stop it. Voters were free to prepare their own ballots. Most voters chose a ballot prepared by their favorite party, and if two parties each listed the same candidate on their separate ballots, election returns tallied up the vote received under each party label for the candidate.

In 1964, the federal Civil Rights bill was passed, banning discrimination in housing and jobs relative to race, ethnicity, religion, and sex. Little-noticed at the time was a short provision, 52 USC 10101(a)(2)(B), that protects voting. It says that if a voter makes an "error or omission that is not material in determining whether such individual is qualified under state law to vote in such election", that voter must be allowed to vote and to have the vote counted.

During August, U.S. District Courts in Georgia and Texas used that law to enjoin state laws that created barriers to voting, as follows:

Georgia: on August 18, U.S. District Court Judge J. P. Boulee, a Trump appointee, enjoined the law that requires a postal absentee ballot outer envelope to include the voter’s birthday. African Methodist Episcopal Church v Kemp, n.d., 1:21cv-1284. The law also requires the outer envelope to include the voter’s Drivers License number, or the state ID number, or the last four digits of the voter’s Social Security Number. Therefore, the opinion said, birthday isn’t needed and a ballot with an incorrect or missing birthday must still be counted.

In the same case, the judge also enjoined the law that bars anyone from giving food or water to anyone waiting in line to vote, if the voter is at least 150 feet from the entrance to the polling place, although that part was not based on the materiality law.

Texas: on August 17, U.S. District Court Judge Xavier Rodriguez, a Bush Jr. appointee, struck down a 2021 law that requires a voter to list either his or her drivers’ license number, personal ID number, or the last four digits of the Social Security Number, on the application for an absentee postal ballot and on the mail ballot itself. The law said the voter had to choose which of these three numbers to list, and whichever number was chosen had to match the same number that the voter had used when he or she registered to vote. If the voter didn’t remember which number was used, and chose another number, the application or the ballot was rejected. La Union del Pueblo Entero v Abbott, w.d. 5:21cv-0844.

On August 5, the minor party and independent plaintiffs in the Texas ballot access case filed an appeal to the Fifth Circuit. Miller v Doe. This is the case filed in 2019 against all the Texas ballot access laws.

On July 21, the U.S. Court of Appeals, D.C. Circuit, issued an opinion in Stein v Federal Election Commission, 21-1213. It upholds the FEC’s determination that Jill Stein must repay $175,272 in 2016 primary season matching funds. Stein was the Green Party nominee in 2016. On August 21, Stein asked for rehearing before all the judges of the D.C. circuit.

The case has two issues: (1) whether it was constitutional for the FEC to change the rules in 2016, shortening the period in which minor party candidates can receive donations that the government will match and (2) whether the FEC had a duty to correct its calculation after the Stein campaign had pointed out an FEC error.

As to the period during which donations can be matched, the specific issue was whether that period ended when Stein received the Green Party nomination, or when she lost the Peace & Freedom Party nomination. The period in question is short – August 5 versus August 14 – but Stein raised a lot of money during that period, and the inability to have that money matched was a serious blow to her campaign.

The Court didn’t really grapple with the issue. It basically expressed the personal opinion of the judges that the program is already too generous to minor party presidential candidates. The decision is by Judge Gregory G. Katsas (Trump appointee) and signed by Judges Karen L. Henderson (Bush Sr.) and Robert L. Wilkins (Obama).

Federal public funding for presidential candidates has existed since 1976. Minor parties whose presidential nominee received primary season matching funds at least once are the Green, New Alliance, Citizens, Natural Law, Reform, and Libertarian Parties.

On August 23, U.S. District Court Judge Judith Levy ruled from the bench and granted a preliminary injunction against the defendants in the lawsuit Libertarian National Committee v Saliba, e.d., 5:23cv-11074. The case had been filed by the national Libertarian Party against activists in one faction of the Michigan Libertarian Party (including many of the party’s 2022 nominees), to force them to stop referring to their group as the Michigan Libertarian Party. The national committee recognizes the other faction of the Michigan party.

The next day, the judge issued a short order specifying that the LNC must post a $20,000 bond if it wishes the case to continue, just in case the defendants win and are able to show that they had been damaged by the injunction. The party only actually needs to produce a small percentage of the $20,000. The basis for the lawsuit is the national party’s trademark.

On August 8, the voters of Ohio defeated a ballot measure put on the ballot by the legislature that would have made it more difficult for constitutional initiatives to get on the ballot, and to pass. The margin was 43%-57%.

It would have required a substantial number of signtures from all 88 counties in the state. No other state has ever required an initiative petition to have signatures from each county. It would also have said that constitutional initiatives can’t pass unless they receive 60% Yes vote.

The only state that requires more than a majority of voters to pass an initiative changing a state constitution is Florida, which requires a vote of 60%.

Colorado: on August 23, the Tenth Circuit revived a lawsuit against the law that requires small committees that spend money to support or oppose a ballot measure to register with the state and disclose their contributions and expenditures. Colorado Union of Taxpayers v Griswold, 22-1122. The U.S. District Court had dismissed the lawsuit on procedural grounds, but the Tenth Circuit said the case may proceed. The law affects groups that spend as little as $5,000.

California: on July 26, the Ninth Circuit issed an opinion in Progressive Democrats v Bonta, 22-15323. It strikes down a law that maks it illegal for local government employees to solicit campaign funds from their co-workers. The U.S. District Court had upheld the law. One of the reasons the Ninth Circuit struck it down is that there is no similar law on state employees soliciting campaign funds from their co-workers. The state did not appeal.

New Mexico: on August 17, U.S. District Court Judge William P. Johnson, a Bush Jr. appointee, struck down three campaign contribution limits: (1) a $5,000 limit on contributions from a state party to a local party; (2) a $5,000 limit on state party donations to a non-gubernatorial nominee of that party; (3) an $11,000 limit on party contributions to a gubernatorial nominee. Republican Party of New Mexico v Torrez, 1:11cv-900.

The decision has some very useful charts showing each state’s law on how much individuals may donate to a party; how much money state parties can give to county parties; and how much money a national party can give to a state party (although states can’t limit donations from national parties to state parties that affect federal candidates).

State	Start Date?	V-P?	Electors?	Pres. Substitution?	V-P Substitution?
Ala.	No	Yes	No	No	Yes
Alas.	No	No	No	No	– –
Ariz.	No	No	Yes	No	– –
Ark.	No	Yes	No	No	Undetermined
Cal.	April 26, 2024	Yes	Yes	No	Yes
Ct.	Jan. 2, 2024	Yes	Yes	Yes	Yes
Del	No	No	No	No	– –
D.C.	June 14, 2024	Yes	Yes	Yes	Yes
Fla.	No	Yes	No	Yes	Yes
Ga.	Jan. 9, 2024	No	Yes	No	– –
Hi.	No	Yes	No	No	No
Ida	No	Yes	No	No	Yes
Ill.	March 26, 2024	Yes	Yes	Yes	Yes
Ind.	No	Yes	Yes	No	Yes
Iowa	No	Yes	Yes	Yes	Yes
Kan.	No	Yes	Yes	No	Yes
Ky.	Nov. 5, 2023	Yes	Yes	Yes	Yes
Maine	Jan. 1, 2024	Yes	Yes	No	Yes
Md.	No	No	No	No	– –
Mass.	Feb. 13, 2024	No	Yes	No	No
Mich.	No	No	No	No	– –
Minn.	June 21, 2024	Yes	Yes	No	Undetermined
Miss.	No	Yes	No	No	– –
Mo.	No	No	Yes	No	– –
Mt.	No	Yes	No	No	Yes
Neb.	No	Yes	Yes	No	Yes
Nev.	No	No	No	No	– –
N.H.	No	No	No	No	– –
N.J.	No	Yes	Yes	Yes	Yes
N.M.	March 1, 2024	No	No	No	– –
N.Y.	April 16, 2024	Yes	Yes	Yes	Yes
No.C.	No	No	No	No	– –
No.D.	No	No	No	No	– –
Ohio	No	Yes	No	Yes	Yes
Okla.	No	No	No	No	– –
Ore.	No	No	Yes	No	– –
Pa.	Feb. 14, 2024	Yes	Yes	Yes	Yes
R.I..	June 26, 2024	No	Yes	No	– –
So.C.	No	No	No	No	– –
So.D.	Jan. 1, 2024	Yes	Yes	No	No
Tenn.	No	No	Yes	No	– –
Tex.	March 5, 2024	No	No	No	– –
Utah	No	Yes	No	No	Yes
Vt.	No	No	Yes	No	– –
Va.	Jan. 2, 2024	Yes	Yes	Yes	Yes
Wash.	June 29, 2024	Yes	No	No	Yes
W.Va.	No	No	No	Yes	– –
Wis.	June 1, 2024	Yes	No	No	Yes
Wyo.	No	No	No	No	– –

"V-P?" tells whether the petition form must list a vice-presidential candidate. "Electors?" tells whether candidates for presidential elector must be on the form.

State	Requirements		Signatures or Regisrations Obtained					Deadline
	Full Party	Cand.	Libert.	Green	Consti.	Wk. Fam.	No Labels
Ala.	42,353	5,000	0	0	0	0	finished	Aug. 15
Alaska	(reg) 5,000	3,614	already on	*1,513	already on	0	*already on	Aug. 7
Ariz.	34,116	(es) #43,000	already on	*29,000	0	0	*already on	Sept. 6
Ark.	10,000	5,000	*12,300	already on	0	0	*already on	Aug. 1
Calif.	(reg) (es) 75,000	219,403	already on	already on	156	0	*10,000	Aug. 9
Colo.	10,000	pay fee	already on	already on	already on	0	already on	Aug. 7
Conn.	no procedure	#7,500	already on	can’t start	can’t start	can’t start	can’t start	Aug. 7
Del.	(est.) (reg) 760	(est.) 7,600	already on	*737	*259	*328	*10	Aug. 20
D.C.	no procedure	(est.) #5,200	can’t start	already on	can’t start	can’t start	can’t start	Aug. 7
Florida	0	145,040	already on	already on	already on	0	already on	Sept. 1
Georgia	69,884	#7,500	already on	can’t start	can’t start	can’t start	can’t start	July 9
Hawaii	861	5,745	already on	*150	*0	0	0	Aug. 7
Idaho	17,359	1,000	already on	*0	already on	*0	*0	Aug. 30
Illinois	no procedure	#25,000	can’t start	can’t start	can’t start	can’t start	can’t start	June 24
Indiana	no procedure	#36,944	already on	*0	0	0	0	July 1
Iowa	no procedure	#3,500	already on	0	0	0	0	Aug. 16
Kansas	19,890	5,000	already on	0	0	0	finished	Aug. 5
Ky.	no procedure	#5,000	can’t start	can’t start	can’t start	can’t start	can’t start	Sept. 6
La.	(reg) 1,000	#pay fee	already on	already on	221	0	0	Aug. 23
Maine	(reg) 5,000	#4,000	(rg) *2,000	already on	0	0	(reg) 7,000	Aug. 1
Md.	10,000	10,000	already on	*1,200	0	0	0	Aug. 5
Mass.	(est) (reg) 49,000	#10,000	already on	(reg) 3,991	(reg) 330	(reg) 750	0	July 30
Mich.	44,478	30,000	already on	already on	already on	0	0	July 18
Minn.	(est) 130,000	#2,000	0	0	0	0	0	Aug. 20
Miss.	be organized	1,000	already on	already on	already on	0	0	Sept. 6
Mo.	10,000	10,000	already on	*3,000	500	0	0	July 29
Mont.	5,000	#5,000	already on	*already on	0	0	0	Aug. 14
Nebr.	6,605	2,500	already on	0	0	0	0	Aug. 1
Nev.	10,096	10,096	already on	*50	already on	0	*already on	July 5
N. Hamp.	18,575	#3,000	0	0	0	0	0	Aug. 7
N.J.	no procedure	#800	0	0	0	0	0	July 29
N. M.	3,562	3,562	already on	already on	0	0	0	June 27
N.Y.	no procedure	#45,000	can’t start	can’t start	can’t start	already on	can’t start	May 28
No. Car.	13,757	82,542	already on	already on	*14,000	0	*already on	May 18
No. Dak.	7,000	4,000	*1,000	0	0	0	0	Sept. 2
Ohio	40,345	5,000	*500	0	0	0	finished	Aug. 7
Okla.	35,592	pay fee	already on	0	0	0	0	July 15
Oregon	28,576	23,737	already on	already on	already on	already on	already on	Aug. 27
Penn.	no procedure	5,000	can’t start	can’t start	can’t start	can’t start	can’t start	Aug. 1
R.I.	17,884	#1,000	0	0	0	0	0	Sept. 6
So. Car.	10,000	10,000	already on	already on	already on	already on	finished	July 15
So. Dak.	3,502	3,502	already on	*3,912	0	0	*already on	Aug. 6
Tenn.	56,083	275	0	0	0	0	0	Aug. 20
Texas	80,778	113,151	already on	already on	*can’t start	can’t start	can’t start	May 19
Utah	2,000	#1,000	already on	0	already on	0	*already on	Jan. 6
Vermont	be organized	#1,000	already on	0	0	0	0	Aug. 1
Virginia	no procedure	#5,000	can’t start	can’t start	can’t start	can’t start	can’t start	Aug. 23
Wash.	no procedure	#1,000	can’t start	can’t start	can’t start	can’t start	can’t start	July 27
West Va.	no procedure	#7,948	already on	already on	0	0	0	Aug. 1
Wisc.	10,000	#2,000	already on	already on	already on	can’t start	can’t start	Aug. 6
Wyo.	3,879	3,879	already on	0	already on	0	0	Aug. 27
~			34	*17	*12	3	*10	~

#partisan label permitted. "WK FAM" = Working Families. "(reg.) = registered members. "Deadline" column shows the deadline for the latest way to get on the ballot. The Utah entry is not a typo and its deadline is clearly unconstitutional.

On July 31, No Labels announced that former Missouri Governor Jay Nixon had not only joined, but will become its Director in charge of getting on the ballot in all states. Nixon was elected Governor in 2008 and re-elected in 2012. He is the last Democrat ever elected to be Missouri Governor.

Nixon had been a Missouri State Senator in 1989, the year the legislature passed a ballot access reform bill. He voted "yes" on the bill, which cut the number of signatures from approximately 25,000 signatures, to exactly 10,000 signatures.

On August 18, James Buckley died at the age of 100. He was the Conservative Party nominee for U.S. Senate in New York in 1970, and he defeated his Republican and Democratic opponents. He is the last person to have won a U.S. Senate race as the nominee of a minor party, without also being a major party nominee. The Nixon administration gave him covert support because President Nixon didn’t like the Republican nominee, Charles Goodell.

Ironically, when he ran for re-election in 1976, he was the nominee of both the Republican Party and the Conservative Party, but he lost to the Democratic nominee, Daniel Moynihan.

Before 1970, the last minor party nominee (who was not also a major party nominee) elected to the U.S. Senate was Robert M. La Follette, Jr., in 1940 in Wisconsin. He was the Progressive Party nominee.

The most recent minor party member of the U.S. Senate was Dean Barkley, but he was never elected. He was appointed to the Senate by Minnesota Governor Jesse Ventura. He was a member of the Independence Party. He served from November 4, 2002 until January 3, 2003. He filled the vacancy created by the death of Senator Paul Wellstone.

The first Republican presidential debate for the 2024 election was held August 23. Eight candidates qualified. In order to qualify, they needed to be at 1% in polls, and have at least 40,000 donors. The eight candidates were Doug Burgum, Chris Christie, Ron DeSantis, Nikki Haley, Asa Hutchinson, Mike Pence, Vivek Ramaswamy, and Tim Scott.

The Clerk of the U.S. House has published Statistics of the Congressional Election of November 8, 2022. It has the official election returns for each congressional election for 2022 (though no primary returns are included). It is available free. Phone (202) 225-1908. The Clerk has been publishing these books starting in 1920. They include a chart showing the national House vote for each party, and the national Senate vote for each party.

The Federal Election Commission will also publish a free book of election returns in about a month. It will be called "Elections 2022" and will include primary returns as well as general election returns.

Louisiana elects all its statewide executive posts, and all members of its legislature, to four-year terms on October 14, 2023. There was no primary. Parties don’t have nominees, but the party label is included for every candidate.

For executive statewide office, the only minor party candidates are four members of the Independent Party for Governor, and one for Lieutenant Governor.

For State Senate, the only minor party candidates are two members of the Independent Party.

For State House, the only minor party candidates are two from the Independent Party, and one Libertarian.

There are two independent candidates for State Senate, and six for State House.