U.S. SUPREME COURT WEAKENS STATE CONTROL OVER PRESIDENTIAL BALLOT ACCESS

On March 4, the U.S. Supreme Court issued its opinion in Trump v Anderson, 23-719.  This is the Colorado ballot access case over whether former President Donald Trump could be on the Republican presidential primary ballot.  The Court ruled unanimously that states cannot bar anyone from being on a ballot for any federal office on the grounds that the candidate might be ineligible under section three of the Fourteenth Amendment.  That section says no one may hold office if he or she had engaged in insurrection or treason.

The decision says nothing explicitly about state power to remove presidential candidates from ballots in connection with other qualification requirements.  But it says the country is ill-served by a policy that results in a presidential candidate being on the ballot in some states and not other states.  It calls this a “patchwork.”  It says, “The ‘patchwork’ would likely result from state enforcement that would sever the link that the Framers found so crucial between the National Government and the people of the United States as a whole.”

This language should help to persuade lower courts to strike down severe ballot access laws for presidential elections that have the effect of causing a patchwork.  In 1968, when the U.S. Supreme Court for the first time struck down a severe ballot access law in Williams v Rhodes, it implicitly applied a “patchwork” analysis.  It noted in footnote nine that Ohio‘s petition requirement was far more difficult than the petition requirement of any other state.  Ohio’s was 15% of the last gubernatorial vote, and no other state had a requirement more than 5%.

It is true that Article II, which covers the presidency, on its face, grants states complete control over presidential elections.  Article II is unlike Article I, which covers Congress.  Article I says Congress can overrule state laws concerning congressional elections.  There is no similar clause for presidential elections.

But the U.S. Supreme Court, for 90 years, has interpreted Article II to mean that Congress can pass laws governing presidential elections.  In 1934, the Court considered whether Congress could pass campaign finance legislation that applied to presidential elections.  It upheld the federal law:  “While presidential electors are not officers or agents of the federal government, they exercise federal functions under, and discharge duties in virtue of authority conferred by, the Constitution of the United States.  The President is vested with the executive power of the nation.  The importance of his election and the vital character of its relationship to and effect upon the welfare and safety of the whole people cannot be too strongly stated.  To say that Congress is without power to pass appropriate legislation to safeguard such an election from the improper use of money to influence the result is to deny the nation in a vital particular the power of self protection.”

The Court has also issued many opinions striking down state laws that concern presidential elections.  It has struck down severe ballot access laws that hurt independent and minor party presidential candidates in Ohio, Illinois, New York, Indiana, Pennsylvania, and Arkansas.  It also remanded cases in California and Maryland that resulted in wins on remand.

There were many other issues in the Trump Colorado case that the Court did not address.  It said nothing about whether Trump engaged in insurrection.  It did not decide whether Section Three covers presidents.  It made no comment about freedom of association for political parties.  It expressed no thought about the right of voters to vote freely for the candidate of their choice.  The decision is only 13 pages, an amazingly short decision in a case with so many issues.

The decision cites U.S. Term Limits v Thornton and Anderson v Celebrezze with approval, with no dissent.  This is significant, because both of those opinions, which were important victories for ballot access, had been decided by margins of 5-4.  Justice Clarence Thomas had dissented passionately in U.S. Term Limits, but now he is on record in support.

Most of the public reaction to the decision has focused on the confusion the decision created as to whether Congress can enforce Section Three, and, if so, how.  Four justices wrote separately to criticize the majority opinion for muddling that issue.  But that aspect of the case is not relevant to the ballot access implications.  Trump v Anderson is the first U.S. Supreme Court decision to bolster ballot access, and the freedom of voters to vote freely for the candidate of their choice, since 1992, when the Court struck down some Illinois ballot access restrictions in Norman v Reed.

The Opinion for the Court is not signed, but it is fairly likely it was written by Chief Justice John Roberts.  One concurrence is by Justices Sotomayor, Kagan, Jackson; the other by Justice  Barrett.

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IDAHO IMPROVES FILING DEADLINE

On March 12, Idaho Governor Brad Little signed HB 661, which moves the independent presidential petition deadline from March 15 to August 1.  The bill had been introduced on February 26.

This only occurred because Robert F. Kennedy, Jr., had filed a lawsuit against the old deadline on February 12.  Idaho is the second state to have improved its deadline as a result of a Kennedy lawsuit; the first such state was Utah, which moved the deadline for all independent candidates from January to June 15.  The Utah bill, SB 107, was signed February 28.

Kennedy’s Idaho lawsuit also attacks the law that says the petition must include a vice-presidential nominee.  That part of the case will be decided later this year.  The Idaho case is Team Kennedy v McGrane, 1:24cv-83.

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OTHER BALLOT ACCESS BILLS

Arizona:  on February 29, the House passed HB 2474, which says that petitions to qualify a new party must be completed within two years.  Current law lets the petition take as long as the proponents wish.

Arizona(2):  on February 26, the Senate passed SB 1158, which does not allow any challenges to the ballot position of a candidate based on Section 3 of the Fourteenth Amendment.

Connecticut:  on March 13, the House Government Administration and Elections Committee introduced an omnibus election law bill, HB 5498.  It includes a provision making it illegal for any party to have “independent” in its name.  If the bill passed, the Independent Party, which is ballot-qualified in Connecticut for most federal and state offices, would be forced to change its name by January 1, 2025.

A similar bill in California was vetoed in 2019 by Governor Gavin Newsom, who said that he believed the bill would violate the First Amendment.  At one time or another, 47 states have had a party on the ballot that had either “independent” or “independence” as part of its name.

Idaho:  on March 26,  Governor Brad Little signed SB 144, which increases the “no politics” zone around polling places from 100 feet to 250 feet.  This new law will make it more difficult for petition circulators to do their work.

Kansas:  HB 2516, the bill to increase the statewide independent petition requirement from 5,000 to 2% of the last gubernatorial vote (over 20,000 signatures), will not pass.  Even though it had passed the House in February, the Senate Federal and State Affairs Committee, where the bill is sitting, has not acted on the bill, and it is now too late for it to pass.

Louisiana:  Representative Kyle M. Green (D-Marrero) has introduced HB 133.  It restores the ability of independent congressional candidates to get on the general election ballot with a fee instead of a petition.  Earlier this year, in a special session, that ability had been lost.

Minnesota:  Bills have been introduced in both houses of the legislature to immediately disqualify the Legal Marijuana Now Party from the ballot, even though the state has already held a presidential primary for it.  The bills are SF 4729 and HF 4772.  They are omnibus election law bills.  On March 25, they each passed out of the policy committees.

Oklahoma:  on March 13, the House passed HB 1105.  It would require all petitioners for an initiative to have a “criminal history investigation” performed by the Oklahoma Bureau of Investigation.  Furthermore, the circulator would need to pay for the investigation.

Even if the investigation found a conviction, that would not prevent that circulator from working on the petition.  But the information would be put in a public database maintained by the Secretary of State.

Rhode Island:  Representative David J. Place (R-Gloucester) and Evan P. Shanley (D-Warwick) have introduced HB 7766.  It eases the definition of a political party, to a group that polled 2% of the vote for any statewide office.  Current law requires 5% for President or Governor.  Also, the group would be a qualified party if it had at least 5,000 registered members, or if it had a member in the state legislature.  The bill is endorsed by the Secretary of State.  It had a hearing on March 26 in the State Government & Elections Committee.  The Committee did not act on the bill but may do so in the near future.

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CONGRESSIONAL BILL FOR PROPORTIONAL REPRESENTATION

On March 20, Congressmember Don Beyer (D-Virginia) again introduced the Fair Representation Act.  This year it is HR 7740.  He had also introduced it in 2017, 2019, and 2021.

It has seven co-sponsors, all Democrats:  Californians  Barbara Lee, Scott Peters, and Ro Khanna; Earl Blumenauer of Oregon; Summer Lee of Pennsylvania; James McGovern of Massachusetts; and Jamie Raskin of Maryland.  This is the highest number of co-sponsors the bill has had on the day it was introduced.

For states with at least seven U.S. House members, it would mandate multi-winner districts and Ranked Choice Voting, which when used for multi-winner districts, becomes a Single Transferable Vote system, a type of proportional representation.  The bill also mandates a non-partisan method to draw the districts, for all states with at least two members.

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OTHER ELECTION BILLS

Idaho:  on March 12, the Senate passed SB 1415, to restore the presidential primary and make it effective in time for it to happen this year on May 21.  But the House has not acted on the bill, so it is too late to take effect this year.

Maine:  on March 5, the House passed LD 1578, the National Popular Vote Plan bill.  On March 13, the Senate also passed it.  The bill still has not been sent to the Governor.  This is the first state to have substantially passed a National Popular Vote Plan bill since 2023.  Assuming it gets final approval in Maine, the plan will have become law in states with 209 electoral votes.  It won’t go into effect until states with at least 270 electoral votes have passed it.

Mississippi:  although bills to restore the initiative process made some headway in each house, the versions of the bills were different, and no action was taken to settle the varying details before legislative deadlines passed.  So for the third year in a row, the legislature will not have passed a bill that could restore the initiative process, which was eliminated from the State Constitution by the State Supreme Court in 2021.

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DEAN PHILLIPS WINS WISCONSIN BALLOT ACCESS CASE

On February 2, the Wisconsin Supreme Court unanimously put Dean Phillips on the Democratic presidential primary ballot.  Phillips v Wisconsin Elections Commission, 2024-AP-000138-OA.

The law says the state must place candidates on presidential primary ballots automatically if they are discussed in the news media, but the Elections Commission had refused to list him.  They had only put President Joe Biden on the Democratic ballot.  The primary is April 2.

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BOOK REVIEW:  A REAL RIGHT TO VOTE

A Real Right to Vote:  How a Constitutional Amendment Can Safeguard American Democracy, by Professor Richard L. Hasen, 2024.

Review by Bill Redpath

I have heard from time to time that there should be a right to vote in the U.S. Constitution, but I have wondered how much difference it would really make.  I agree with about everything in Professor Hasen’s new book, but I am still left questioning the real effect such an amendment might have.

Hasen advocates an amendment that would establish a right to vote for felons who have served their time, and which would also give residents of U.S. territories voting representation in both houses of Congress.  He also envisions that the Electoral College would be repealed and that the composition of the U.S. Senate would closer approximate one-person, one-vote.  He acknowledges how difficult it would be to implement such changes.

Hasen also advocates automatic voter registration with a unique Voter ID number.  States would still administer their elections, but the ID number would be used to combat voter fraud.  However, this idea could be implemented without a constitutional amendment, as least as to federal elections.

Professor Hasen brings up Texas cases involving the inability of college students and military personnel to register to vote in that state, ostensibly because some politicians feared how they would vote.  But I see this not a question of a right to vote, but of where one has a right to vote.

The first vote I ever cast was for Mayor of Bloomington, Indiana, on November 4, 1975, at age 18.  I registered to vote in the dinner line one night at my dorm.

But I had lived the first eighteen years of my life in Findlay, Ohio, my parents still lived there, and I did not qualify for in-state tuition at Indiana University.  While I thought nothing of it at the time, in retrospect, I think it would not have been an act of oppression for the state of Indian to have told me to register in my hometown.

And while the Texas law denying military personnel voter registration was overly broad and ham-handedly devised, I think it is a legitimate question as to where the U.S. military should be allowed to vote.

One idea not included in the proposed constitutional amendment is that the right to vote includes the right of choice for whom to vote.  That would guarantee write-in space on ballots.  In 1992 the U.S. Supreme Court denied that the right to vote includes the right of choice for whom to vote, in Burdick v Takushi.

And, one other aspect of voting rights not brought up is the ballot acces rights of candidates.  What is the point of voting if a non-existent to meager selection of candidates is on the ballot?  A constitutional amendment setting a petition signature requirement ceiling of one-tenth of 1% of the number of registered voters wouldn’t be any more controversial than some of the book’s other proposals, and would do more to invigorate our democracy than some of the book‘s proposals.

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PRESIDENTIAL PRIMARY RESULTS, MARCH 5 “SUPER TUESDAY”

The chart below presidential primary election returns for states that voted on March 5, except that Maine and Massachusetts are omitted because neither state goverment has released any election returns, even unofficial ones.  They will be in the May issue.  “Legal” refers to the Legal Marijuana Now Party.  The American Independent presidential primary will also be in the May issue.

DEM.	AL	AR	CA	CO	MN	N C	OK	TN	TX	VT	VA
Biden	165,567	71,978	3,200,188	477,314	171,278	609,680	66,882	122,735	824,732	56,924	317,329
Boddie			25,373
Cambridge			12,701		235
Cornejo			41,261	4,310	323				17,137
Greenstein										779
Locke				2,402					8,568
Lozada		786			290				11,259
Lyons		1,442	21,008	1,480			4,441
Palmer				3,985	758					404
Perez-Serrto		879	42,925	2,591	372		1,809		27,381
Phillips	8,321	2,346	99,981	17,930	18,960		8,182		26,341	1,942	12,586
Uygur					692		1,974		16,072	700
Williamson		3,883	145,690	16,757	3,459	88,900	8,356		43,499	2,873	28,599
NONE	11,085			52,107	45,914			10,442
REP.
Binkley	500	183	3,563	2,219		916	303	722	2,579	278	853
Burgum		157
Christie	1,406	600	20,164	7,188	1,431	3,166	1,095	1,874	9,074	1,020	3,384
DeSantis	8,184	3,162	35,581	12,667	4,085	14,740	3,946	7,946	36,233	949	7,494
Haley	75,501	49,085	430,792	291,568	97,182	250,838	49,406	112,914	404,115	36,241	244,586
Hutchinson		7,377	3,327	1,269		727	431	533	2,953
Ramaswam	1,807	860	11,069	5,112	1,470	3.418	1,022	1,713	10,568	546	2,503
Stuckenberg	734	151	3,895				397	352	2,336
Swift			4,231
Trump	486,883	204898	1,953,947	555,676	232,846	793,978	254,928	446,682	1,805,040	33,162	440,416
NONE	9,509					7,448		4,883	45,387
LIBERTAR.
Anderson						162
Ballay			21,833			183
Dunlap						464
Hornberger						357	362
Lindsey						320
Mapstead						176
Oliver						676	569
Rectenwald						195
Smith						354
Ter Maat						137
NONE						2,058
GREEN
Stein			15,714
PFP
De la Cruz			6,376
Sherman			1,785
West			5,394
LEGAL
Forchion					168
Gabel					759
Reyes					365
Schuller					459
Supreme					397

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2024 PRESIDENTIAL PETITIONING

State	Requirements		Signatures or Registrations Obtained					Deadline
	Full Party	Candidate	Libertarian	Green	Constitu.	RFK Jr.	No Labels
Ala.	42,458	5,000	0	*150	0	0	finished	Aug. 15
Alaska	(reg)   5,000	3,614	already on	*3,700	already on	500	already on	Aug. 7
Ariz.	34,116	(es) #43,000	already on	already on	0	finished	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	*271	*15,000	*55,000	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	*425	0	0	0	Aug. 7
Del.	*(reg) 769	*7,690	already on	*719	*240	35	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	*organizing	already on	Sept. 1
Georgia	69,884	#7,500	already on	can’t start	can’t start	finished	0	July 9
Hawaii	862	*5,798	already on	already on	0	already on	already on	Aug. 7
Idaho	17,359	1,000	already on	110	already on	*0	finished	Aug. 30
Illinois	no procedure	#25,000	*100	*0	*0	*0	*0	June 24
Indiana	no procedure	#36,944	already on	*60	0	0	0	July 1
Iowa	no procedure	#3,500	already on	*150	0	0	0	Aug. 16
Kansas	20,180	5,000	already on	*150	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	*3,500	0	*8,000	already on	Aug. 5
Mass.	*(reg) 47,816	#10,000	already on	*500	(reg) 330	0	0	July 30
Mich.	44,478	*12,000	already on	already on	already on	*finished	0	July 18
Minn.	*125,534	#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	*6,700	*1,900	*1,000	*15,000	July 29
Mont.	5,000	#5,000	already on	already on	0	1,000	finished	Aug. 14
Nebr.	6,605	2,500	already on	0	0	*1,000	finished	Aug. 1
Nev.	10,096	10,096	already on	*11,000	already on	*disputed	already on	July 5
N. Hamp.	18,575	#3,000	0	0	0	already on	0	Aug. 7
N.J.	no procedure	#800	0	*100	0	0	0	July 29
N. M.	3,562	3,562	already on	already on	0	0	*finished	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	finished	*14,000	already on	May 18
No. Dak.	7,000	4,000	*already on	0	0	0	*6,000	Sept. 3
Ohio	40,345	5,000	finished	6,000	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	*100	0	0	0	0	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	*finished	finished	July 15
So. Dak.	3,502	3,502	already on	*0	0	0	already on	Aug. 6
Tenn.	43,498	275	in court	0	0	0	*already on	Aug. 20
Texas	81,030	113,151	already on	already on	*0	*18,000	*17,000	*May 28
Utah	2,000	#1,000	already on	already on	already on	already on	already on	*June 1
Vermont	be organized	#1,000	already on	0	0	0	0	Aug. 1
Virginia	no procedure	#5,000	*1,800	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	*800	0	Aug. 1
Wisc.	10,000	#2,000	already on	already on	already on	0	*5,000	Aug. 6
Wyo.	3,879	3,879	already on	0	already on	*100	*finished	Aug. 27
Total States On			*37	20	12	3	*17

#partisan label permitted. “Organizing” refers to qualifying a party in the states that don’t require a petition for that. “Deadline” column shows the deadline for the latest way to get on.   * means entry changed since the March 1 issue.

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JOE LIEBERMAN DIES

On March 27, former U.S. Senator Joe Lieberman of Connecticut died at the age of 82.  He was elected to the Senate as an independent in 2006.  He was the most prominent leader of No Labels, and his unexpected death is a blow to that organization.

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TWO VETERAN MINOR PARTY LEADERS DIED IN MARCH

On March 4, Jim Hedges died at the age of 85.  He was the publisher of the Prohibition Party’s quarterly newsletter, and had been its presidential nominee in 2016.  He received 5,617 votes.  Although that is a very small amount, it was the highest vote for the party’s presidential nominee since 1988, when Earl Dodge had polled 8,002.  Hedges had also been elected to partisan office in Pennsylvania as a Prohibition Party nominee.

He was also the party’s representative to the Board of the Coalition for Free & Open Elections (COFOE).

On March 11, Harry Kresky died at the age of 79.  He was one of the two ballot access attorneys for the New Alliance Party, which existed 1982-1994 and which puts its presidential nominee, Lenora Fulani, on the ballot in all 50 states in 1988.   He was also a New Alliance nominee for the New York Assembly in 1992.  He also won ballot access cases after his party ceased to exist, especially for Ralph Nader in 2004.  Like Hedges, he was a COFOE board member, representing Independent Voting, the successor to the New Alliance Party.

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UNITED KANSAS SUBMITS PETITION

On March 12, the United Kansas Party, a centrist party, submitted its petition for party status in Kansas.

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WORKERS PARTY OF SOUTH CAROLINA NOMINATES

On March 16, the Workers Party of South Carolina, which is ballot-qualified, nominated Claudia De la Cruz for president.  She is also the nominee of the Party for Socialism and Liberation.  She is the first Marxist presidential nominee to ever appear on a government-printed ballot in South Carolina.  Neither the Socialist Labor Party, the Communist Party, nor the Socialist Workers Party ever appeared on a South Carolina ballot.

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NICOLE SHANAHAN WILL BE ROBERT KENNEDY’S RUNNING MATE

On March 26, Robert F. Kennedy, Jr., announced that his vice-presidential running mate will be Nicole Shanahan of California.  Kennedy had resisted using a stand-in vice-presidential nominee, and the fact that he has completed his ticket means he can now begin to circulate petitions in the states that require a vice-presidential nominee on the forms.

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SENATOR BOB MENENDEZ MAY RUN FOR RE-ELECTION AS AN INDEPENDENT

On March 21, U.S. Senator Bob Menendez of New Jersey said he will not run for re-election as a Democrat, but he may run as an independent.

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HIGH COURT WON’T HEAR STEIN LAWSUIT ON MATCHING FUNDS

On March 18, the Supreme Court refused to hear Jill Stein’s lawsuit over federal matching funds.  Stein v Federal Election Commission, 23-771.  Now she must repay some of her 2016 money.  However, she has applied for 2024 primary season matching funds.