EIGHT WINS, SEVEN LOSSES IN BALLOT ACCESS CASES

During August, minor parties and independents won eight lawsuits or challenges, and lost seven.  However, not all the cases are over.

Winning Cases

Illinois:  on August 23, Robert F. Kennedy, Jr., won his challenge process and will appear on the ballot.  The decision says that it doesn’t matter if he was recently a registered Democrat; he can still be an independent candidate in Illinois.  It says his address was not sworn to on his paperwork, so it doesn’t matter if there is evidence that he doesn’t live at his designated New York state address.

Some of his petitioners had worked on other petitions in other states this year.  Also some of them had worked on Kennedy’s independent petitions in other states.  Illinois is the only state that won’t let petitioners work for a general election candidate if they had worked on other petitions that year.  The decision says that the petitioners who circulated general election petitions in other states (either for Kennedy or some other minor party or independent candidate) can circulate for Kennedy in Illinois.  But petitioners who worked on Republican or Democratic primary petitions in other states can’t circulate for him.  Fortunately, even after those signatures were subtracted, he still had enough.

Maine:  on August 21, the Secretary of State dismissed the challenge to Cornel West’s petition.  The challengers had said he didn’t have enough valid signatures, but they wanted to disallow all signatures in which the signer used a nickname instead of a formal first name.  They also wanted to reject all signatures in which the signer included the month and day of signing, but not the year.

Michigan:  on August 24, Cornel West won his ballot access lawsuit in the State Court of Claims.  West v Benson, 24-000134.  His independent petition had enough valid signatures, but the Secretary of State disqualified him because of notary errors on his “affidavit of identity.”  But, the decision says that it doesn’t matter, because he didn’t even need to file that form.  The state is not appealing.

Nevada:  on August 12, the Green Party won its ballot access lawsuit.  Nevada State Democratic Party v Nevada Green Party, Carson City District Court, 24oc-00107.   The Democratic Party said the petition sheets had omitted some mandatory language.  The petition form had been furnished by the Secretary of State.  The court said the omission is not material.  The Democrats are appealing.

New Jersey:  on August 6, an administrative law judge said Robert F. Kennedy, Jr. should be on the ballot.  The challenge to his petition had claimed he is a “sore loser” and that therefore he can’t be on the ballot.  The challenger admitted that Kennedy was not on the Democratic primary ballot, but claimed that because Kennedy received some write-ins in that primary, he had still been trying to receive the Democratic nomination.  The challenger did not tell the court that New Jersey law doesn’t ban “sore losers” in presidential races anyway, as shown by precedents in 1988 and 1992 set by David Duke and Lyndon LaRouche.

North Carolina:  on August 12, the Justice for All Party won its lawsuit in federal court.  Ortiz v North Carolina State Board of Elections, e.d., 5:24cv-420.  The plaintiff has nominated Cornel West for president.

The Board had disqualified the party partly because it felt non-members of the party had sponsored the petition, but the opinion says there is nothing illegal about that.  The Board had also said that some of the signers said they had been tricked, but the Board didn’t have evidence that the number of such signers was large enough to have made any difference.  The deicision is by U.S. District Court Judge Terrence Boyle, a Reagan appointee.

North Carolina(2):  on August 12, a state trial court ruled that the We the People Party should remain on the ballot.  North Carolina Democratic Party v North Carolina State Board of Elections, Wake Co. Superior Court, 24cv-023631-910.  The Democratic Party had claimed the party should be removed because it is a “sham” party, only created to help an independent candidate, Robert F. Kennedy, Jr.  But the ruling aaid there is nothing in the law about the motives of the founders of the party.

Wisconsin:  on August 26, the State Supreme Court issued a three-page order in Strange v Wisconsin Election Commission, 2024AP1643-OA.  The decision keeps Jill Stein on the ballot.  The plaintiff, an employee of the Democratic Party, had said that the Green Party did not choose its presidential elector candidates properly.  A law says qualified parties should choose their presidential elector candidates on October 1 in a meeting in the State Capitol, to be attended by that party’s legislators and legislative nominees.

But the Green Party doesn’t have any candidates for the legislature this year, so the challenger said therefore they can’t nominate electors.  The Court said the challenger “is not entitled to the relief he seeks.”

Losing Cases

Georgia:  on August 26, an Administrative Law Judge recommended to the Secretary of State that Robert F. Kennedy, Jr., Cornel West, and Claudia De la Cruz, should all be removed from the ballot.  They had all gathered the necessary 7,500 valid signatures, but the Judge said they each needed a separate petition for each presidential elector candidate.

He also said that Jill Stein should be removed from the ballot.  She had been put on the ballot under a new law that says a presidential candidate whose party is on the ballot in at least twenty other jurisdictions should be on in Georgia automatically.  The Green Party is on in more than twenty states, but the Judge said the party couldn’t possibly prove it by the deadline set forth in the law.  The Secretary of State does not need to accept these recommendations, and he probably won’t.  It was he who cleared the petition forms.

Indiana:  on August 17, the Seventh Circuit upheld the petition requirement for statewide independent candidates, and the nominees of unqualified parties, which is 2% of the last vote cast for Secretary of State.  That usually amounts to 40,000 signatures, and is so severe that no statewide petition had succeeded since 2000, until this year, when Robert F. Kennedy, Jr. complied with the law.  Indiana Green Party v Morales, 23-2756.  Neither the lower court nor this court agreed that the plaintiffs are entitled to a trial.  The decision says it is obvious that petition requirements of 2% are constitutional and did not even mention any of the federal precedents that have struck down similar requirements.  They are from North Dakota, South Dakota, Arkansas, and Michigan.  The decision is by Judge Kenneth Ripple, a Reagan appointee, and is also signed by Judges David Hamilton, a Clinton appointee, and Michael Brennan, a Trump appointee.  Plaintiffs will ask for a rehearing.

New Jersey:  on August 16, the State Supreme Court refused to hear Ayyadurai v New Jersey State Democratic Committee.  This is the lawsuit filed by independent presidential candidate Shiva Ayyadurai to get back on the ballot.  His petition had enough valid signatures, but the Democratic Party had challenged him because he was born in India.  New Jersey in the past printed the names of presidential or vice presidential candidates who were under age 35 five times.

New York:  On July 27, the Second Circuit issued an opinion in Meadors v Erie County Board of Elections, 23-1054.  This is the lawsuit against the May petition deadline for independent candidates, which has only existed since 2019; earlier it had been in late August.  The opinion says the case is moot, and erases the lower court ruling, which had upheld the deadline.  The decision is unsigned and will not be published. It was before Judges Reena Raggi (Bush Jr. appointee), Denny Chin (Obama), and Steve Menashi (Trump).

The decision that the case is moot contradicts the U.S. Supreme Court 1969 decision Moore v Ogilvie, which said that ballot access constitutional lawsuits are not moot just because the election is over.  The plaintiff-candidates in Moore were not planning to run in a future election.  That fact is in another U.S. Supreme Court opinion, Richardson v Ramirez.  It is possible the Meadors decision will be brought before the U.S. Supreme Court.

New York(2):  on August 12, a state trial court removed Robert F. Kennedy, Jr. from the ballot on the grounds that he had committed fraud when he entered his residence address on his declaration of candidacy.  Cartwright v Kennedy, Albany County Supreme Court, 906349-24.  Kennedy listed an address in New York, the state in which he has always voted, and which he considers to be his domicile.

Kennedy’s state court case is being appealed, and the hearing is August 28 in the Appellate Division of the State Supreme Court.  Meanwhile, Kennedy has a case in federal court on some of the same issues.  Kennedy v Berger, s.d.  1:24cv-03897.  The Libertarian and Green Parties are intervening in that case.  The plaintiffs and intervenors are in a strong position to get some sort of ballot access relief, because they will tell the court that unless relief is granted, New York will be the only jurisdiction in the nation with only Kamala Harris and Donald J. Trump on the ballot.  When one particular state has that characteristic, it is difficult for that state to defend itself in court.

Pennsylvania:  in a series of decisions in Commonwealth Court, challengers have succeeded in removing the presidential nominees of the Constitution, Socialism & Liberation, and Justice for All Parties, because they didn’t have full slates of presidential elector candidates.  All three candidates are appealing.  Pennsylvania has no law requiring a complete slate of electors.  The decisions could therefore not cite any law, and they did not.  Instead they quoted a sentence from Article Two of the U.S. Constitution, about the elctoral college.  But it does not follow logically that the Constitution requires a full slate.

In the past, Pennsylvania printed the names of various minor party and independent presidential candidates on the ballot, even though they didn’t run a full slate of elector candidates.  The only previous court precedent on this issue was a New York case in 1968, Application of Horowitz, which said that the Socialist Workers Party didn’t need a full slate.

The three parties had intended to run a full slate, but some of their elector candidates were registered members of another party, or were not able to complete their paperwork in time, so they were disqualified.

Tennessee:  on August 23, U.S. District Court Judge Aleta A. Trauger, a Clinton appointee, upheld the requirement for a new or previously unqualified party to get on the ballot.  Darnell v Hargett, m.d., 3:23cv-1266.

The requirement, a petition of 2.5% of the last gubernatorial vote, is so difficult, that no new party has qualified by petition since 1968, when George Wallace’s American Party qualified.

The opinion is only twelve pages.  It says the Green and Constitution Parties had lost a similar case in 2016, and that the plaintiff Libertarian Party had not presented any compelling evidence to suggest that the old decision was incorrect.  The Liberetarian Party had not tried to qualify with a petition.

When the Libertarian Party filed its case, it was aware of the prior Green-Constitution unfavorable decision.  But it also noted that in 2020 the Sixth Circuit had struck down Michigan’s petition requirement of 30,000 signatures for a statewide independent.  That case was called Graveline v Benson.

Because Tennessee is also in the Sixth Circuit, it seemed reasonable to think that the Michigan decision superceded the old Tennessee opinion.  In the Michigan case, the Sixth Circuit struck down a petition that was less than one percent of the last gubernatorial vote, far easier than the 2.5% required in Tennessee.

Furthermore, the 2016 Tennessee Green-Constitution decision is deeply flawed.  The decision says that the purpose of the 2.5% petition for new parties is to combat “voter confusion.”  The decision says, “The 2.5% signature requirement keeps the ballot from becoming confusing to voters.  The State wants to ensure that the ballot is not confusing, so that a voter’s intention can be carried out.”

Actually, the 2.5% petition causes voter confusion.  The Tennessee petition requirement for independent candidates is only 25 signatures, and no filing fee is required.  Independent presidential candidates need 275 signatures, because Tennessee has eleven electoral votes and 25 multiplied by eleven equals 275.

Because the independent petition is so easy, and the party petition is so difficult, every minor party in Tennessee always uses the independent procedure.  But, this means that the voters invariably see a general election ballot in which only the Democratic and Republican nominees have their party label.  Everyone else is labeled “independent”.  So, many voters don’t realize the true party affiliation of most of the candidates.

The 2016 Green-Constitution decision is also flawed because it omitted key evidence.  It did not mention the fact that no party had qualified by petition since 1968.  It did not mention that before 1961, when any party could be on the Tennessee ballot with no petition, there had never been more than six parties on a government-printed Tennesee ballot.

The 2016 decision did not mention Storer v Brown, a 1974 U.S. Supreme Court opinion that said the independent candidate and political party approaches to politics are “entirely different”, and that states must have constitutional laws for each.  One cannot excuse an unconstitutional law for new parties by pointing to a lenient law for independent candidates.

The 2016 decision did not mention the two U.S. Supreme Court decisions, Storer v Brown (1974) and Mandel v Bradley (1977) that said if a ballot access law is so difficult that it is seldom used, it is probably unconstitutional.

The recent case said that the Libertarian Party had not tried to petition as a party, and therefore it is impossible to know if the petition is too severe.  But, it did not cite the earlier Tennessee decisions that stated the Populist, Constitution, Green, Americans Elect, and Reform Parties had all tried to qualify, and they had all failed.   Also, the new decision did not mention that three times in history, the U.S. Supreme Court had struck down a ballot access law even though the plaintiff had not tried to petition.  They were the Socialist Labor Party in Ohio in 1968, independent candidate Eugene McCarthy in Texas in 1976, and Communist Party presidential nominee Gus Hall in California in 1972.

KANSAS EASES LAW ON HOW PARTIES REMAIN ON BALLOT

On August 1, the Kansas Secretary of State issued a new, favorable interpretation of how parties remain on the ballot.  The law says a party needs to poll at least 1% for a statewide office every two years.  But it is worded ambiguously as to presidential candidates.  Every twelve years the only statewide office on the ballot is president.  The issue is whether a party must meet the vote test in such years.

The Secretary of State who was in office in 1984 ruled that when only president is on the ballot, every party need not worry about the vote test.  But in 2000, another Secretary of State had reversed that ruling and had disqualified the Reform Party because it got less than 1% for Pat Buchanan.

Now Secretary of State Scott Schwab has gone back to the original understanding.  Therefore, none of the parties in Kansas this year need to poll 1% for anything.  Those parties are Democratic, Republican, Libertarian, United Kansas, and No Labels.

FLORIDA AGAIN DOESN’T ENFORCE  BALLOT BARRIER

In 2011, the Florida legislature passed a bill that made presidential ballot access much more difficult.  Before 2011, any qualified party could place a presidential nominee on the ballot.  But in 2011, the law was changed to say that unless a qualified party was recognized by the Federal Election Commission as a “National Committee”, that party could not place a presidential nominee on the ballot unless it submitted a petition of 1% of the registered voters.  This year that equals 145,040 signatures, the second highest presidential petition in the nation.

But later in 2011, the Secretary of State ruled that the new law couldn’t be enforced, because his office had no official knowledge of which parties are recognized by the FEC.  Thus, in 2012, the Peace & Freedom, Objectivist, Justice, American Independent, and Socialism & Liberation Parties all placed presidential nominees on the Florida ballot, even though they didn’t submit a petition and weren’t recognized by the FEC.

However, in 2016, a different Secretary of State reversed that decision and said he would enforce the 2011 law.  He thus kept the Independent Party and the Socialism & Liberation Parties off the ballot for president.  The motivation seems to have been political.  The Independent Party had nominated Evan McMullin for president, and he was deemed to be a threat to the Republican Party’s presidential nominee, Donald Trump.

But, in 2020, the Secretary of State stopped enforcing the 2011 law, and placed the Socialism & Liberation Party on the ballot, even though he knew it was not recognized by the FEC.

This year, the Secretary has again placed the presidential nominee of the Socialism & Liberation Party on the ballot.

TIM WALZ HAS A BAD RECORD ON BALLOT ACCESS

Last year, Minnesota Governor Tim Walz, the Democratic Party’s vice-presidential nominee, acted unfavorably toward ballot access. He signed HF 1830, which stiffened the definition of a qualified party.  The old law required a party to poll 5% for a statewide office, every four years.  The new law increased that to 8%.  That made Minnesota the fifth-most difficult state in the nation.  The only more difficult states are Alabama (20%), Pennsylvania (15%), New Jersey (10%) and Virginia (10%).

The motivation for the bill was a desire by the Democratic majority to eliminate the only ballot-qualified minor party, the Legal Marijuana Now Party.

OTHER LAWSUIT NEWS

Alaska:  on August 22, the State Supreme Court issued a one-sentence order that the initiative to repeal the top-four system should remain on the November ballot.  Opponents of the initiative had argued that it didn’t have enough valid signatures.  The court will explain its reasoning later, but will say that minor flaws on petitions can be corrected after being submitted.

Arizona:  on August 22, the U.S. Supreme Court issued an order in Republican National Committee v Mi Familia Vota, 24A164.  It says that Arizona, for the time being, can enforce a law that people who register to vote using a state form must attach proof of citizenship.  This would be a birth certificate for most people, or possibly a Naturalization Certificate.  However, people who don’t want to do that can use the federal voter registration form, although people who use that form in Arizona can only vote for President and Congress.  The order is temporary until the constitutionality of the law is resolved.

Georgia:  on August 2, the Eleventh Circuit issued an opinion in Graham v Georgia Attorney General, 22-13396.  This is the Libertarian Party’s lawsuit against a campaign finance law that says individuals can give bigger donations to Republican or Democratic gubernatorial candidates than they can give to other gubernatorial candidates.  The judges said the case is moot, even though the law continues to exist.  The opinion is by Judge Elizabeth Branch and is sgined by Judges Kevin Newsom and Robert J. Luck.  All three are Trump appointees.

Indiana:  the U.S. Supreme Court will decide on September 30 whether to hear Rust v Morales, 23-1369.  This is the lawsuit that challenges the law that says a party can exclude candidates from its primary if the candidate did not vote at the last two primaries.  The State Supreme Court had upheld it.

Kansas:  on July 10, the United Kansas Party filed two lawsuits in state court to force the state to allow two parties to jointly nominate the same candidate.  The two cases are identical, but they are filed in separate counties.  United Kansas Party v Schwab.  The Saline County case is sa-2024-cv-152; the Reno County case is rn-2024-cv-184.

LEGISLATIVE NEWS

Alabama:  Representative Phillip Pettus (R-Killen) has introduced HB 6.  It curtails somewhat the ability of parties to block candidates from their primaries for any reason whatsoever.  It says candidates cannot be barred just because they accepted a contribution from a non-member of the party.

California:  on August 22, the legislature passed AB 1784, which lets candidates for district and local offices withdraw during the filing period.  California had been the only state that bans candidates from ever withdrawing.

GREEN PARTY PRESIDENTIAL CONVENTION VOTE

STATE	Jill Stein	Jasmine Sherman	Davi	Ajamu Baraka	Randy Toler	no preference
Alabama	4	0	0	0	0	0
Arizona	3	1	0	0	0	0
California	50	0	0	0	0	0
Colorado	4	0	0	0	0	1
Connecticut	9	0	0	0	0	0
Delaware	4	0	0	0	0	0
Dist. Columbia	2	0	1	0	0	1
Florida	6	1	0	0	one-half	one-half
Hawaii	4	0	0	0	0	0
Indiana	4	0	0	0	0	0
Iowa	4	0	0	0	0	0
Louisiana	4	0	0	0	0	0
Maine	26	0	0	0	0	0
Maryland	5	0	0	0	0	0
Massachusetts	8	0	0	0	0	0
Michigan	11	0	0	one-half	0	one-half
Minnesota	3	0	0	0	0	0
Mississippi	4	0	0	0	0	0
Missuori	6	0	0	0	0	0
Nevada	4	0	0	0	0	0
New Jersey	6	0	0	0	0	0
New Mexico	4	0	0	0	0	0
New York	9	1	0	0	0	0
North Carolina	3	1	0	0	0	0
Ohio	5	1	0	0	0	0
Oregon	9	2	0	0	0	0
Pennsylvania	10	3	0	0	0	0
South Carolina	3	0	0	0	0	5
Tennessee	3	1	0	0	0	0
Texas	18	1	0	0	0	0
Utah	4	0	0	0	0	0
Virginia	5	0	0	0	0	0
Washington	4	0	0	0	0	0
West Virginia	4	0	0	0	0	0
Wisconsin	3	1	0	0	0	0
Black Caucus	2	0	1	0	0	1
Latinx Caucus	4	0	0	0	0	0
Gay Caucus	4	0	0	0	0	0
Women’s Cau.	2	0	0	0	0	0
TOTAL	267	13	2	one-half	one-half	10

The fifteen states not listed did not have delegates:  Alaska, Arkansas, Georgia, Idaho, Illinois, Kansas, Kentucky, Montana, Nebraska, New Hampshire, North Dakota, Oklahoma, South Dakota, Vermont, and Wyoming.

By contrast, in 2020, eight states sent no delegation; in 2016, eleven states sent no delegation; in 2012, seventeen states sent no delegation; in 2008, thirteen states sent no delegation; in 2004, seven states sent no delegation.  It is not known how many states were represented in 2000.  There was no national convention in 1996.

The convention was August 17, the latest presidential convention the Green Party has ever held.  As in 2020, the convention was virtual, with delegates voting from wherever they happened to be at the time.  Jill Stein was the only candidate who had enough support to meet the qualifications to address the convention.

For vice president, Rudolph “Butch” Ware received a unanimous nomination.

ROBERT F. KENNEDY JR. SUSPENDS CAMPAIGN

On August 23, Robert F. Kennedy, Jr. said he is suspending his campaign and endorsing the Republican nominee, Donald Trump.  He said he intends to try to remove his name from the ballot in the swing states.  So far he has withdrawn in Arizona, Pennsylvania, and Texas.  Some states have said it is too late to withdraw.  The next few weeks will bring greater clarity.

The only other presidential candidate who ran outside the major parties, and who suspended his campaign after making big efforts to get on ballots, was Ross Perot in July 1992.  However, he did not then endorse any other candidate.  Also he kept petitioning, and on October 1 re-entered the race.  He was on the ballot in all states, participated in all three debates, and won 18.9% of the vote.  None of that will happen with Kennedy.

Shortly after the announcement, Kennedy lost his Secret Service protection.

PRESIDENTIAL NOMINATIONS

California:  on August 3, the Peace & Freedom Party nominated Claudia De la Cruz for president.  She is also the nominee of the Socialism & Liberation Party.

Idaho:  the ballot-qualified Constituton Party recently nominated Joel Skousen for president, even though the Constitution Party’s national convention had chosen Randall Terry.  This makes three units of the party that have chosen Skousen; the others are Utah and Nevada.  The Wyoming Constitution Party, which is also ballot-qualified, has decided to run no one for President.

New York:  on July 25, the Working Families Party nominated Kamala Harris, even before the Democratic Party had nominated her.  On August 17, the Conservative Party nominated Donald J. Trump.  These two parties have never run a presidential candidate of their own.

National:  on August 17, the Green Party held its virtual national convention and nominated Jill Stein for president and Rudolph “Butch” Ware for vice president.  See page five for the vote by state.  Stein lives in Massachusetts and Ware in California.

MUSLIMS ON NATIONAL TICKETS

Among the eight national tickets that will be on in at least ten states, for the first time there are Muslim candidates.   The vice presidential nominees of the Green Party and of the Justice for All Party are both Muslims.  They are Rudolph “Butch” Ware of the Green Party, and Melina Abdullah, who is the running mate of Cornel West.

SENATOR MENENDEZ WITHDRAWS HIS INDEPENDENT CANDIDACY

On August 16, U.S. Senator Bob Menendez asked the New Jersey Secretary of State to remove him from the ballot.  He had been running for re-election as an independent candidate.

ARIZONA GREEN PARTY U.S. SENATE PRIMARY

Arizona held a U.S. Senate primary for the Green Party on July 30.  Two candidates were on the ballot, but the Green Party opposed both of them and sponsored a write-in candidate in its primary.  The Green Party believed that one of the candidates on its primary ballot was secretly loyal to the Democratic Party, and might withdraw if he won the nomination.  The other ballot-listed candidate was believed to be secretly loyal to the Republican Party.  The Green Party’s write-in loyalist won the primary.  This only happened because the Green Party sent a letter to all of its registrants, urging a write-in vote for Eduardo Quintana.

PETITIONING CHART

This issue does not contain a presidential petitioining chart, but the October 1 issue will have complete information on which presidential candidates are on the ballot in all states.

BETTER PARTY QUALIFIES IN MISSOURI

The Better Party, which exists only in Missouri, has qualified for the ballot.