LOUISIANA CHANGES CONGRESSIONAL ELECTION SYSTEM; NEW LAW BARS MINOR PARTY CANDIDATES

On January 22, Louisiana Governor Jeff Landry signed HB 17, a bill that had been introduced only one week earlier.  The purpose of the bill was to transform Louisiana’s election system from a system in which parties don’t have nominees (except for President) into a state in which parties do have nominees for all public office.  The bill was amended to apply only to elections for Congress and a few state offices, and then passed.

Unfortunately, the bill made a drafting error and now it is impossible for qualified minor parties to have candidates for either house of Congress.  The law continues to say that a qualified party is any group with 1,000 registrants.  The new law says that the only qualified parties that may have primaries are those parties that got 5% for a statewide office in either the last state election or the last presidential election.  None of the three minor qualified parties (Libertarian, Green, or Independent) got 5% in a recent statewide election.

The new law has no mechanism for those three parties to nominate candidates for either house of Congress, nor for the other offices that will now have party nominees:  State Supreme Court, State Education Board, and Public Service Commission.  In theory, the new law could have provided that they nominate by convention, which would have been a sensible solution.  But instead there is no mechanism.

The bill also harms independent candidates.  Formerly they could get on the general election ballot just by paying a filing fee.  Now they need a petition of 5,000 signatures for U.S. Senate, and 1,000 for U.S. House.  Registered members of qualified parties are not permitted to be independent candidates.

Furthermore, the new law says that the only voters who can sign for independent candidates (who do not get a partisan label on the ballot) are voters who are not registered in any qualified party.

Only two states in history have ever had a law that says party members can’t sign for an independent.  Louisiana had such a law 1916-1948, and Arizona had one 1973-1979.  Even though the Louisiana statewide petition between 1916 and 1948 was only 1,000 signatures, not a single independent or minor party candidate qualified for the Louisiana ballot, for any office, all those years.  Even Robert La Follette, independent progressive presidential candidate in 1924, didn’t get on in Louisiana, because he couldn’t find 1,000 voters who were registered independents.  Louisiana was the only state in which he failed to get on the ballot.

The Arizona restriction, barring party members from signing for an independent, was struck down in U.S. District Court in 1979.  Campbell v Hull, 73 F.Supp.2d 1081.

The Oregon legislature in 2005 considered making it illegal for a party member to sign for an independent, but that failed to pass after the sponsor was informed of the Arizona decision.

Fortunately, the new Louisiana law does not go into effect until January 2026, so there will be time for the legislature to revise it.  The legislature is in recess and will not return until April 2024.  If the law is not changed, it will be challenged in court.

The bill also raises the filing fee for independent presidential candidates, and the presidential nominees of unqualified parties, from $500 to $1,000.  Otherwise it has no effect on presidential elections.

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KANSAS BILL WOULD MAKE BALLOT ACCESS FAR WORSE

On January 17, Kansas Representative Paul Waggoner (R-Hutchinson) introduced HB 2516, which would increase the number of signatures for a statewide independent from 5,000 signatures to 25,000.  Waggoner is vice-chair of the House Elections Committee.  The bill had a hearing on January 25.  The Committee hasn’t voted on the bill yet.

The Kansas statewide independent petition was 2,500 from 1897 until 1990, when it was increased to 5,000.  If the bill passes, Kansas will require a higher percentage of the last presidential vote to get a presidential candidate on the ballot (using the easier method) than any other state.  Currently Wyoming and the District of Columbia have the highest percentages.

The motive for the bill seems to be that an independent conservative, Dennis Pyle, appeared on the ballot in 2022 for Governor.  He got 20,452 votes.  The Democratic incumbent won the election with a margin of 31,558 votes.  The Secretary of State is neutral on the bill, but he did point out that it would cost more money to check so many more signatures.

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ARIZONA BILL TO ELIMINATE PRESIDENTIAL ELECTIONS

On January 22, Arizona State Senator Anthony Kern (R-Glendale) introduced SCR 1014, a constitutional amendment to have the outgoing legislature choose presidential electors.  If the bill passed, then it would go on the ballot for voters to decide.  No one expects the bill to pass, even though the author is chair of the Judiciary Committee.

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PARTIES GAIN MORE POWER IN FOUR STATES

During January, political parties strengthened their control over their nomination process in four states, and also made headway toward that goal in Alaska.

Alaska:  an initiative qualified for the November 2024 ballot that would restore the ability of parties to have nominees.  Parties lost that ability (except in presidential elections) in 2020, when voters passed Measure Two with 50.55% of the vote.

Also, HB 4, a bill to restore party nominations, passed the House Judiciary Committee on January 18.  It is now in the House Finance Committee.  It is not expected to pass in the Senate, even if it gets that far.  Both the bill and the initiative would also repeal Ranked Choice Voting.

Arizona:  on January 16, U.S. District Court Judge John Tuchi, an Obama appointee, ruled that if the No Labels Party wants to block anyone from filing in its primary for Congress or partisan state office, it can do that.  No Labels Party v Fontes, 2:23cv-2172.

State law says all qualified parties nominate by primary.  No Labels does not want to have any nominees in 2024 except maybe for President and Vice-President.  When some individuals filed to run in the 2024 No Labels primary for congress and state office, the Secretary of State accepted their filings, and then No Labels sued to force him not to accept them.  The Secretary of State has not filed a notice of appeal.

This is a case of first impression.  Never before had any qualified party, with its own primary, filed a lawsuit to keep all people from running in its own primary for certain offices.

There have been lawsuits by parties to block particular candidates.  The Ninth Circuit refused to let the Alaskan Independence Party block one particular candidate in its primary in 2008.

Florida:   on January 12, U.S. District Court Judge Allen Winsor, a Trump appointee, upheld the ability of the state Democratic Party to keep Dean Phillips off its presidential primary ballot.  Steinberg v Democratic Party of Florida, n.d., 4:23cv-518.  The plaintiff was a voter who wanted to vote for Phillips.  The party’s own rules say every “recognized” presidential candidate for that party’s nomination should be on the ballot, and the plaintiff argued that by any reasonable definition of “recognized”, Phillips qualifies.  The ruling says that the plaintiff does not have standing, and also that the Democratic Party is not part of any government, so the First Amendment therefore doesn’t apply to the party.

Louisiana:   see the front page story on the new law that restores the ability of parties to have nominees for Congress and certain state offices.  Parties lost that ability in 1974 (for state office) and in 1976 for Congress.

Minnesota:  on January 11, the State Supreme Court ruled that the Republican Party has a right to exclude Ryan Binkley from its presidential primary ballot.  Binkley for President 2024 v Simon, A23-1900.  Binkley has qualified for Republican presidential primary ballots in almost all other states.

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CALIFORNIA BALLOT ACCESS WIN

On December 28, 2023, a California state court put Assemblyman Vince Fong on the March 2024 primary ballot as a candidate for U.S. House.  Fong v Weber, Sacramento Superior Court, 23WM-137.  The Secretary of State had kept him off because he had earlier filed to run for re-election to the legislature.  California doesn’t permit candidates to withdraw, and  the Secretary of State felt that state law does not permit candidates to run for two offices simultaneously.  The Court said there is no such prohibition, so he is on for both offices.  The state is appealing.

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U.S. SUPREME COURT ACCEPTS TRUMP ACCESS CASE

On January 5, the U.S. Supreme Court agreed to hear Trump v Anderson, 19-719, the Colorado case over whether Donald Trump should be on the Republican presidential primary ballot.  The Colorado Supreme Court had removed him, but then had stayed its own opinion while the U.S. Supreme Court decides.  The court will hear the case on February 8.

This is the first time the U.S. Supreme Court has agreed to hear a ballot access case since 2007, when it agreed to hear New York State Board of Elections v Lopez Torres, a case over the difficult petition requirements for primary candidates to run for Delegate to the party meetings that choose judicial nominees.  In that case, the lower courts had invalidated the petition requirements, but the U.S. Supreme Court reversed the lower court opinions and upheld the requirements.   The Court said the major parties supported the strict rules, and it was the parties had a Freedom of Association right to make the process difficult.  In practice, the requirements were so difficult, the only candidates who could ever comply were those backed by the party organizations.

In the Trump case, the Colorado Republican Party and the national Republican Party both want Trump on the ballot, so if the court follows the Lopez-Torres precedent, Trump is likely to win the case.

The only other state that has removed Trump from a ballot so far is Maine, where the Secretary of State ruled on December 28 that he should not be on the primary ballot.  However, on January 17, a trial court stayed the Secretary’s ruling.  Trump v Bellows, Kennebec Superior Court, ap-24-01.  The Secretary of State asked the State Supreme Court to uphold her, but on January 24 it agreed with the lower court.  Case 2024-ME-5.

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TRUMP BALLOT ACCESS CASE HAS MANY ISSUES

As of the date of publication, January 26, forty-eight briefs have been filed in Trump v Anderson, the U.S. Supreme Court case on Donald Trump’s ability to be on the Colorado Republican presidential primary ballot.  That includes one brief filed by the Colorado Republican State Central Committee, and one brief filed by Trump.  Those are the parties to the case.  The brief filed by the voters who challenged Trump has not yet been filed.

In addition, it includes 46 amici briefs.  There will be more soon.  Looking at the briefs, one gets a sense of which issues in the case seem most important to each side.  Many briefs focus on multiple issues, but one can know which issue is most important to each group or individual who filed a brief, by reading which issue they address first.  Briefs typically start with the most important point that the brief writer wants to convey.

Many of the briefs are filed by multiple organizations, but they are described below only by the first-listed organization or individual, because space does not permit a full listing of everyone or every organization that sponsored the brief.

The leading issue, by this standard, is the question of whether the Fourteenth Amendment, section 3, includes the President.  Briefs that open with this issue include those filed by:  Donald Trump, Antaeus B. Edelsohn, America’s Future, Edwin Meese and other former Attorneys General, James T. Lingren, the Wyoming Secretary of State, David Boyle, Devin Watkins, Claremont Institute Center for Constitutional Jurisprudence, League for Sportsmen, 102 Colorado voters, Colorado Republican State Central Committee, Kurt T. Lash, David E. Weisberg, Vivek Ramaswamy, and Seth Barrett Tillman.

The next most-argued issue is whether Section Three is self-executing, or needs an Act of Congress.  The briefs that make that their leading issue are those filed by:  the Missouri Secretary of State and some other Secretaries, Christian Family Coalition, the state of Kansas, Larry Kidd, Akhil David Amar, NAACP Legal Defense and Educational Fund, Senator Ted Cruz, and William Jones.

The third most focused-on issue is whether states can adjudicate Section Three challenges, or whether only Congress can do so, after the popular election has been held.  These center on Section Three’s language that insurrectionists can not “hold” the office, but says nothing about whether they can run.  These were filed by: the Republican National Committee, the state of Indiana and 23 other states, former Congressman Peter Meijer, Derek Muller, Senator Steve Daines and the National Republican Senatorial Committee, and Jack Cohen.

Four briefs make their opening point on whether or not Trump engaged in insurrection, or whether he was afforded due process in the Colorado state courts.  They were filed by:  Gavin Wax, Robert S. Brewer and other former U.S. Attorneys; James Madison Center for Free Speech, and Judicial Watch.

Four briefs were filed to say that the U.S. Supreme Court must decide the issue quickly.  They generally say it must be decided before the Republican National Convention, which is in July.  They are by:  Michigan Secretary of State, Ash Bhagwat and other scholars, Edward B. Foley and other election law specialists, and the Bar Association of New York City.

Three briefs focus on the importance of voting rights.  They are by:  Terpschore Maras and 3,000 other voters, Pearl O. Madrial, and the Landmark Legal Foundation.  The Maras amici focuses on the Ninth Amendment.

Two briefs focus on political party freedom of association to determine their nominee.  They are by:  the Kansas Republican Party and 32 other state Republican Parties, and Condemned USA.

Finally, there are six briefs that make their own separate arguments.  The brief of U.S. Term Limits urges the Court not to write anything favorable about the decision that struck down state laws on congressional term limits.  The brief filed by the Brennan Center urges the Court not to write anything that bolsters the “independent state legislature theory” that holds that state courts cannot interfere with election laws for federal elections.  The brief of Indiana and twenty-six other states say the issue is a “political issue” not suitable for courts.  The Public Interest Legal Foundation says that Section Three is not in force because of some congressional acts passed in the nineteenth century.  The Children’s Rights Legal Scholars says the Court must consider the interests of children.  Finally, the brief filed by Republican presidential candidate Ryan Binkley says that the District of Columbia code, section 16-3501, which was passed by Congress, requires all lawsuits over this issue to be filed in the U.S. District Court for the District of Columbia.

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BALLOT ACCESS BILLS

Arizona:  Representative Alex Kolodin (R-Scottsdale) has introduced HB 2474, which says that petitions to create a new party must be completed within two years.

Indiana: Representative Ryan Dvorak (D-South Bend) has introduced HB 1324.  It lowers the number of signatures for a statewide independent, or the nominee of an unqualified party, from 2% of the last vote for Secretary of State, to 250 signatures.

Virginia:  Delegate Joshua Cole (D-Fredericksburg) has introduced HB 440, which would legalize electronic signatures on ballot access petitions.

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PRESIDENTIAL PRIMARY CANDIDATES ON BALLOTS

The January 1, 2024 B.A.N. listed presidential primary candidates on the ballot in Alabama, Arizona, California, Georgia, Maine, Michigan, Minnesota, Nevada, New Hampshire, North Carolina, Ohio, Oklahoma, South Carolina, Texas, Utah, and Vermont.  However, that issue didn’t have room for parties that have presidential primaries, other than the Democratic, Republican, and Libertarian Parties.  For the states listed last month, there are additional presidential primaries in California and Minnesota.

California America Independent: James Bradley
California Green:  Jill Stein
California Peace & Freedom: Claudia De La Cruz, Jasmine Sherman, Cornel West

Minnesota Legal Marijuana Now:  Edward Fanchion, Krystal Gabel, Rudy Reyes, Dennis Schuller, and Vermin Supreme. Krystal Gabel did not consent to having her name listed, but it is too late for her to take action to remove her name.

Future issues of  B.A.N. will list presidential primary candidates in Delaware, District of Columbia, Illinois, Indiana, Montana, Nebraska, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, South Dakota, West Virginia, and Wisconsin.  As of the publication date of this issue, the list of candidates isn’t yet final in those 14 jurisdictions.

Democrat

AZ

CO

CT

FL

KS

KY

LA

MD

MA

MS

NY

TN

VA

WA

Joe R. Biden

X

X

X

X

X

X

X

X

X

X

X

X

X

X

Gabriel Cornejo

X

X

Rob Ely

X

Frank Lozada

X

X

X

Stephen Lyons

X

X

X

Jason Palmer

X

X

X

Arman Perez-Serrato

X

X

Dean Phillips

X

X

X

X

X

X

X

X

X

X

X

X

Cenk Uygur

X

X

Marianne Williamson

X

X

X

X

X

X

X

X

X

X

X

Republican

Ryan Binkley

X

X

X

X

X

X

X

X

X

X

Doug Burgum

X

John A. Castro

X

Chris Christie

X

X

X

X

X

X

X

X

X

X

Ron DeSantis

X

X

X

X

X

X

X

X

X

X

X

X

Nikki Haley

X

X

X

X

X

X

X

X

X

X

X

X

X

X

Asa Hutchinson

X

X

X

X

X

X

Vivek Ramaswamy

X

X

X

X

X

X

X

X

X

X

X

David Stuckenberg

X

X

X

Rachel Swift

X

X

Donald Trump

X

X

X

X

X

X

X

X

X

X

X

X

X

X

Libertarian

Jacob Hornberger

X

Lars Mapstead

X

Chase Oliver

X

Michael Rectenwald

X

Mike ter Maat

X

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2024 PRESIDENTIAL PETITIONING

State	Requirements		Signatures or Registrations Obtained					Deadline
	Full Party	Candidate	Libertarian	Green	Consti.	RFK Jr.	No Lb.
Ala.	*42,458	5,000	0	0	0	0	finished	Aug. 15
Alaska	(reg)   5,000	3,614	already on	*300	already on	50	already on	Aug. 7
Ariz.	34,116	#42,303	already on	*already on	0	*1,200	already on	Aug. 17
Ark.	10,000	5,000	already on	already on	0	0	already on	Aug. 1
Calif.	(reg) (es) 75,000	219,403	already on	already on	*234	*50	*38,000	Aug. 9
Colo.	10,000	12,000	already on	already on	already on	0	already on	Aug. 7
Conn.	no procedure	#7,500	already on	*0	*0	*0	*0	Aug. 7
Del.	*(reg) 769	*7,690	already on	*720	*243	*10	*already on	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	*0	*0	*400	*0	July 9
Hawaii	861	*5,798	already on	*640	0	*1,100	*already on	Aug. 7
Idaho	17,359	1,000	already on	0	already on	0	*12,000	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	20,180	5,000	already on	0	0	0	*already on	Aug. 5
Ky.	no procedure	#5,000	0	0	0	0	0	Sept. 6
La.	(reg) 1,000	#pay fee	already on	already on	*161	0	0	Aug. 23
Maine	(reg) 5,000	#4,000	*already on	already on	0	0	already on	Aug. 1
Md.	10,000	10,000	already on	*1,800	0	*3,200	*already on	Aug. 5
Mass.	(est) (reg) 49,000	#10,000	already on	(reg) 3,991	(reg) 330	0	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	*organizing	already on	Sept. 6
Mo.	10,000	10,000	already on	*5,400	1,600	*300	*13,000	July 29
Mont.	5,000	#5,000	already on	already on	0	0	*5,500	Aug. 14
Nebr.	6,605	2,500	already on	0	0	*500	*8,000	Aug. 1
Nev.	10,096	10,096	already on	*4,100	already on	0	already on	July 5
N. Hamp.	18,575	#3,000	*0	*0	*0	*finished	*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	*3,000	June 27
N.Y.	no procedure	#45,000	can’t start	can’t start	can’t start	0	can’t start	May 28
No. Car.	13,757	82,542	already on	already on	18,000	*500	already on	May 18
No. Dak.	7,000	4,000	*6,900	0	0	0	*3,000	Sept. 3
Ohio	42,014	5,000	*5,000	*2,100	0	0	finished	Aug. 7
Okla.	35,592	pay fee	already on	0	0	0	0	July 15
Oregon	*29,294	23,737	already on	already on	already on	0	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	*3,000	Sept. 6
So. Car.	10,000	10,000	already on	already on	already on	600	finished	July 15
So. Dak.	3,502	3,502	already on	*4,100	0	0	already on	Aug. 6
Tenn.	*43,498	275	*in court	0	0	0	*15,000	Aug. 20
Texas	*81,030	113,151	already on	already on	can’t start	can’t start	can’t start	May 19
Utah	2,000	#1,000	already on	*already on	already on	already on	already on	Jan. 6
Vermont	be organized	#1,000	already on	0	0	0	0	Aug. 1
Virginia	no procedure	#5,000	0	0	0	0	0	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	*100	0	Aug. 1
Wisc.	10,000	#2,000	already on	already on	already on	*0	*1,000	Aug. 6
Wyo.	3,879	3,879	already on	0	already on	0	*4,000	Aug. 27
Total States On			*36	19	12	1	16

#partisan label permitted. “RFK Jr” = Robert F. Kennedy, Jr.  “Deadline” column shows the deadline for the latest way to get on.

* means entry changed since Jan. 1, 2024 issue.  Forward Party is not on chart because it isn’t running anyone for president.

American Solidarity:  on in Arkansas and Hawaii, and is petitioning in Minnesota, New Jersey, and Wisconsin.

Socialism & Liberation:  on in Hawaii and Utah.

Prohibition:  on in Arkansas and is petitioning in Tennessee.

Cornel West:  is on in Alaska and Oregon, by virtue of receiving the nomination of the Aurora Party of Alaska and the Progressive Party of Oregon.

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ROBERT F. KENNEDY, JR. WILL CREATE ONE-STATE PARTIES IN CERTAIN STATES

The Robert F. Kennedy, Jr. independent presidential campaign has created the We the People Party in California, Delaware, Hawaii, Mississippi, and North Carolina.  In Texas, it has created the Texas Independent Party.  The reason for the creation of these parties is that the states mentioned above require more signatures for an independent presidential candidate than they do for an entire new party.

Kennedy is far from the first independent candidate to create one-state parties.  Ross Perot in 1992 created the Independent Initiative Party in Oregon, and the No-Party Party in Alaska, for ballot access reasons.  John B. Anderson in 1980 created the Independent Party in North Carolina.  George Wallace in 1968 created the American Party in many states, and the American Independent Party in other states.  He was essentially an independent candidate; no nationally-organized party nominated him.  Instead, he was the candidate of a collection of unaffiliated state parties.

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NO LABELS PARTY STILL HASN’T RELEASED PLAN ON HOW NOMINATION WILL HAPPEN

Leaders of the No Labels Party said in October 2023 that they would release their plan of how to nominate a presidential and vice-presidential candidate by the end of 2023.  However, they still have not done so.

No Labels leaders say they have thirteen potential presidential candidates in mind.  Individuals who said during December that they do not want a nomination are Nikki Haley, former Maryland Governor Larry Hogan, and Dean Phillips.

No Labels is a qualified party in Maine, so it could have had a presidential primary in March.  However, it asked the Secretary of State not to hold a primary, and the Secretary agreed.

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IOWA LIBERTARIANS SET UP CAUCUS LOCATIONS IN ALL 99 COUNTIES

The Iowa Libertarian Party set up locations for a presidential caucus in all 99 counties.  The caucuses were held the same evening that the Democratic and Republican caucuses were held, January 15.  The results were:  Chase Oliver 42.7%; Michael Rectenwald 16.9%; Michael ter Maat 13.5%; Joshua Smith 13.5%; Vivek Ramaswamy 4.5%; Mario Perales 2.2%; Jacob Hornberger 1.1%; Lars Mapstead 1.1%; Art Olivier 1.1%; none of the above 1.1%, 2.3% other.

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DENNIS KUCINICH WILL RUN FOR U.S. HOUSE AS AN INDEPENDENT

On January 17, former Democratic Ohio Congressman Dennis Kucinich said he will run for his old seat in Cleveland this year as an independent candidate.