THREE PENNSYLVANIA BALLOT ACCESS RESTRICTIONS STRUCK DOWN

On March 2, U.S. District Court Judge Stewart Dalzell, a Bush Sr. appointee, struck down three Pennsylvania ballot access laws. Green Party of Pennsylvania v Aichele, e.d., 2:14cv-3299.

Notarization of petition sheets: Pennsylvania has long required each petition sheet to be notarized. The plaintiffs, the Green Party and the Libertarian Party, challenged this requirement on the basis that it costs a large amount of money to get each sheet notarized. Pennsylvania notaries charge $5.00 per sheet. The plaintiffs argued that their statewide petitions, which usually need 30,000 raw signatures, require the expenditure of thousands of dollars in notary fees.

The decision uses the precedents that say mandatory filing fees are unconstitutional, to conclude that notarization also requires a form of mandatory filing fees and therefore the notarization requirement is unconstitutional. In addition, the decision says that there is no evidence that notarization is really needed for any purpose. If the petition is not challenged, elections officials accept it as valid. If the petition is challenged, the challenger then compares the signatures on the petition with the signatures in the statewide voter registration files. In either event, the notarization serves little purpose.

The number of states that require ballot access petitions for parties and candidates to be notarized has steadily shrunk. Back in 1984, 23 jurisdictions required notarization, but now only 14 states require it. States that still require it, other than Pennsylvania, are Colorado, Georgia, Idaho, Illinois, Kansas, Maine, Missouri, Nebraska, Nevada, New Jersey, Rhode Island, Texas, and Virginia.

Jurisdictions that have abandoned the requirement are Arkansas, District of Columbia, Iowa, Maryland, North Carolina, Ohio, Oklahoma, Washington, and Wisconsin.

This is only the second decision to strike down notarization. The first was a North Carolina case filed by the Libertarian Party, McLaughlin v N.C. State Board of Elections, 850 F.Supp 373 (1994). The basis for that decision was that the state only required notarization for newly-qualifying parties, but did not require it for any other type of petition, so the court used Equal Protection to strike it down. North Carolina did not appeal that decision.

The U.S. Supreme Court seemed to consider notarization in American Party of Texas v White in 1974, but said that the plaintiffs didn’t present evidence that the notarization requirement was burdensome, so left the Texas requirement in place.

Judge Dalzell technically did not strike down the Pennsylvania notarization requirement, because he interpreted the Pennsylvania law not to require it. The state law says the circulators are "affiants", and generally an "affiant" is someone who appears in front of a notary. But the judge said that isn’t necessarily so. However, he said if the law does require notarization, then it is unconstitutional.

He said his ruling (for all three laws he struck down) only applies to the Green Party and the Libertarian Party. Assuming the ruling isn’t reversed on appeal, though, it would be easy for any other group to depend on this precedent and get its reach extended. The state hasn’t said whether it will appeal. It need not reveal that until June 11.

Signing for multiple minor parties: Pennsylvania law says a voter can only sign one general election petition per office. This was also struck down.

In Pennsylvania, major party members who want to run in a party primary also must submit petitions. The opinion says that the state doesn’t prevent major party voters from signing for one primary candidate and then voting for some other candidate for that same office in the primary. Therefore, because major party members have the ability to support more than one candidate for a particular office, it follows that voters who support minor parties and independent candidates should have the same freedom.

Besides Pennsylvania, 21 other states limit the number of petitions a voter may sign: Arizona, California, Illinois, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, Missouri, Nevada, New Hampshire, New Jersey, New York, Oregon, South Dakota, Texas, Utah, Vermont, Washington, Wisconsin, and Wyoming. This list shouldn’t be taken to mean that all types of petitions are restricted. For instance, in Oregon, voters can’t sign for two new parties, but they can sign for multiple independent candidates for the same office.

Out-of-state circulators: this is the third restriction that was struck down. This part of the decision was not surprising, because on July 31, 2014, Judge Dalzell had enjoined that law. However, last year, he had not enjoined the other two laws described above.

He issued another part of his opinion on May 11, upholding the law that doesn’t permit signers from different counties on the same sheet.

The March 2 decision upheld the law that says only registered voters (as opposed to people who aren’t registered but who could register) can sign. Also, his March 2 opinion said there is no need for him to rule on two other restrictions, because the state has already said it won’t enforce them: (1) the state will no longer print on the form language that says circulators must live in the district; (2) the state will no longer force signers to fill in the year, in the blank in which they show the date.

On April 29, the California Supreme Court refused to hear Rubin v Padilla, S224970. This is the case that challenged the California election law that forces all voters to either vote in the general election for the two candidates who did best in the June primary, or not to cast a ballot at all.

As a result, California voters now have fewer choices in the election itself than the voters of any nation in the world that holds elections, with the sole exception of North Korea, China, and Vietnam. Even Washington, which has a system similar to California, allows write-ins for all office in November.

The California Supreme Court once had a proud record of protecting voting rights for all voters. In 1942, it struck down laws passed by the legislature in 1940 and 1941, banning the Communist Party from the ballot. It was the only state court in the U.S. that took such an action. All other state courts that considered such laws, including the state courts of Arkansas, Kansas, Maryland, Massachusetts, Michigan, New Jersey, New Mexico, Ohio, Pennsylvania, and Washington, either upheld such laws or ducked the question. Finally they were all invalidated by the U.S. Supreme Court in 1974, in Communist Party of Indiana v Whitcomb.

On May 12, Oklahoma Governor Mary Fallin signed HB 2181, to lower the number of signatures for a new party from 5% of the last vote cast, to 3% of the last gubernatorial vote. The bill had passed the House on May 6 by a vote of 83-0.

As a result, the 2016 Oklahoma requirement drops from 41,242 to 24,745. Oklahoma still has the nation’s highest percentage for presidential ballot access; all other states have some procedure that is at or below 2% of the last gubernatorial vote.

In 2016, a presidential candidate running outside the major parties can now get on the ballot in all 51 jurisdictions with support from approximately 562,000 voters. The exact number can’t be known until early 2016. By contrast, in 2012, support was needed from 639,345 voters. The reasons for the easier hurdle in 2016, compared to 2012, are ballot access improvements in Oklahoma, California, and Virginia; and also the lower turnout in 2014 compared to 2010 means that the formula for the number of signatures in some states caused some requirements to drop.

North Carolina now requires 16% of all the signatures needed to get on the ballot in all jurisdictions, even though North Carolina only cast 3.5% of the 2012 presidential vote. North Carolina requires 89,366 signatures, the largest number required in any state for president in 2016.

On May 22, Nevada SB 499 passed the Assembly. It moves the petition deadline for newly-qualifying parties from April to June, and moves the non-presidential independent candidate petition deadline from February to June. Now the bill goes to Governor Brian Sandoval. If it is signed, the Green Party’s pending lawsuit against the deadlines will be moot.

On April 30, U.S. District Court Martha Vazquez, a Clinton appointee, upheld New Mexico’s petition requirement for independent candidates of 3% of the last gubernatorial vote. Parker v Duran, 1:14cv-617. The plaintiff was an independent candidate for Public Education Commission, a partisan office, in district 4. The decision was not too surprising, because the same judge had denied him injunctive relief last year. He was the incumbent. As a result of his being kept off the ballot, the only candidate on the ballot was the Democratic Party nominee.

Alabama and New Mexico are the only states that require statewide independent candidates to submit a petition more difficult than 2% of the last vote cast. New Mexico has never had an independent candidate on the ballot for statewide office other than President.

The plaintiff argued that there can’t be a good reason to require him to submit a petition signed by 3% of the last gubernatorial vote, because if he had been a member of one of New Mexico’s four ballot-qualified minor parties, he only would have needed a petition signed by 1% of the last gubernatorial vote. He submitted 1,379 signatures. His requirement was 2,196, but the minor party requirement was only 732.

The decision fails to mention four of the five precedents that say states cannot require independent candidates to get more signatures than minor parties. Judge Vazquez did mention Lee v Keith, an Illinois decision, but she said that precedent doesn’t apply because the Illinois petition deadline was too severe. The cases she did not mention are Danciu v Glisson from the Florida Supreme Court, DeLaney v Bartlett, a U.S. District Court decision from North Carolina; Patton v Camp, a U.S. District Court decision from Alabama, and Greaves v State Board of Elections, another North Carolina U.S. District Court case. The plaintiff, will probably appeal.

On May 20, the Sixth Circuit ruled that Michigan does not violate the Constitution by requiring approximately twice as much support for a new party to get on, than for an old party to remain on. Erard v Michigan Secretary of State, 14-1873. The decision is eight pages and does not identify the judge who wrote it. The judges on the case are R. Guy Cole and Ronald Gilman (Clinton appointees), and Jeffrey Sutton (a Bush Jr. appointee). The panel had not held an oral argument and the decision won’t be published.

Michigan requires 31,519 signatures for a new party to get on the ballot, but in 2014 only required an old party to poll 16,491 votes for any statewide race. Michigan always has at least 7 statewide partisan races every two years, so it is very easy for an old party to remain on the ballot. The state recognizes the Republican, Democratic, Libertarian, Green, Constitution, and Natural Law Parties. The plaintiff is associated with the Socialist Party.

The decision does not mention the two precedents that say states can’t require more signatures for a new party than votes for an old party: Williams v Rhodes, and Baird v Davorem.

In Williams v Rhodes, the Supreme Court said one reason the Ohio law was unconstitutional was that new parties needed a petition of 15% of the last vote, but old parties needed a 10% vote to stay on. In the Baird Massachusetts case, the court struck down the law that said nominees of unqualified parties needed a petition of 3% of the last gubernatorial vote, but old parties could remain on if they polled one-tenth of 1% for Governor.

Michigan and Kansas are the only states that require more signatures for a new party than votes for an old party. The plaintiff will ask for reconsideration.

On May 19, U.S. District Court Judge Richard Story, a Clinton appointee, issued an opinion in the ballot access lawsuit filed in 2012 by the Green and Constitution Parties. Green Party of Georgia v Kemp, n.d., 1:12cv-1822.

The lawsuit challenges the Georgia law that requires approximately 50,000 signatures for the presidential nominee of an unqualified party to get on the ballot. The decision says that the requirement is not unconstitutional on its face, but permits a trial to show that the law in practice is so restrictive that it is unconstitutional. The law requires a petition of 1% of the registered voters. No presidential petition has succeeded in Georgia since 2000, when Reform Party nominee Pat Buchanan qualified. The Libertarian Party has been ballot-qualified for statewide office in Georgia since 1988, so it hasn’t had to petition for president.

Georgia requires each petition sheet to be notarized, and no notary is permitted to circulate the petition. Shopping centers in Georgia need not permit circulators on their property, and it is difficult for circulators to find good petitioning spots. Even Americans Elect did not qualify in Georgia in 2012, despite the group’s vast financial resources.

Originally Judge Story had upheld the law without a trial, but the Eleventh Circuit had then remanded the case back to him for more fact-finding.

On May 19, some Ohio campaign finance records were released which show that in 2014, the Ohio Republican Party paid a law firm $300,000 for its services last year in keeping the Libertarian Party gubernatorial candidate off the ballot.

On May 26, the U.S. Supreme Court agreed to hear Evenwel v Abbott, 14-940. The issue is whether the "one person, one vote" principle contained in the 14^th amendment should be based on the number of people living in a district, or the number of people who are eligible to register to vote. The plaintiffs live in two Texas State Senate districts in which the number of actual voters is twice as high as the number of actual voters in certain other State Senate districts.

The general understanding before this case was accepted is that states are free to use either population, or the number of eligible voters, when they draw districts for U.S. House and state legislature. Usually states use population. The case will be argued in the fall of 2015. If the Court sides with the Texas voters who filed the case, it is likely that every other state would also then need to redraw its U.S. House and legislative districts.

Other states in which the redistricting plans are under court attack (for other reasons), and which might require redistricting later this year or early next year, are Alabama and North Carolina. The North Carolina Supreme Court will hear Dickson v Rucho on August 31. A three-judge U.S. District Court in Alabama will have all briefs in Alabama Legislative Black Caucus v Alabama filed by August 7, and will then either issue an opinion or schedule oral argument. The basis for both cases is whether too many African-American voters have been squeezed into a small number of districts.

If Alabama, North Carolina, or Texas, are forced to redistrict before the 2016 election, that will have favorable ballot access implications. All three states have early petition deadlines for new parties and independent candidates, but if new districts are created, they will be required to have later 2016 deadlines.

Arizona: on May 7, the Libertarian and Green Parties asked the Ninth Circuit to rehear Arizona Libertarian Party v Bennett, 13-16254. The issue is the registration form that only lists the two largest parties with a checkbox. If a voter wants to register into any other qualified party, the voter must check the "other" line and write-in that choice.

Arizona (2): on May 20, a U.S. District Court upheld Tucson’s system for electing city council members. Primaries are conducted by letting members of each party within each ward choose a nominee. But in the general election, all the party nominees run at-large. Public Integrity Alliance v City, 4:15cv-138.

Florida: on April 29, the U.S. Supreme Court upheld a rule that does not permit anyone running for judge to ask for a campaign contribution. Williams-Yulee v Florida Bar Association, 13-1499. The vote was 5-4. The opinion was written by Chief Justice John Roberts. The plaintiff was not a judge, and she had sent a mass e-mail to thousands of people, asking for a campaign contribution.

Alabama: on May 21, the legislature passed SB 240, which moves the primary for all office from the second Tuesday in March to the first Tuesday in March. As a result, the petition deadline for new parties and non-presidential candidates will now be one week earlier, and will be March 1 in 2016.

California: AB 372, the bill to force write-in candidates who place second for Congress or partisan state office in the primary to pay a filing fee after the primary is over, has been withdrawn until next year.

Florida: on May 15, Governor Rick Scott signed SB 228, which lets people register to vote on-line. The outcome was somewhat surprising, because the Secretary of State, who is a gubernatorial appointee, had urged a veto.

Minnesota: on May 22, the Governor signed SF 455. It sets a one-year limit for a group to complete the petition to qualify a new party.

Oregon: on May 18, the House passed HB 3475, to implement the National Popular Vote Plan.

Texas: HB 464 and HB 3080, the bills to require minor party nominees (who are nominated by convention) to pay a filing fee, failed to pass.

The Socialist Party of America, by Jack Ross, Potomac Books, an imprint of the University of Nebraska Press, 2015, 753 pages.

The book’s introduction starts with this paragraph: "The Socialist Party of America was the most important minor political party in the history of the United States in the twentieth century."

"Other minor parties, including one or two in the Socialist Party’s own lifetime, performed more impressively at the polls and had a more spectacular short-term impact – but the Socialist Party was unique in the history of American politics as a minor party that enjoyed a consistent level of support, a wide-ranging impact, and a respected place in the national conversation for a half-century. For more than a decade before the First World War it was widely assumed that the Socialist Party was destined to become a permanent fixture on the national political scene. Even as late as the 1930s, there were similar high expectations for the party in some new form."

Other histories of the Socialist Party, or biographies of Eugene V. Debs and Norman Thomas, already exist. But this is the first book to give a complete history of the party, starting with the earlier socialist parties that preceded it, and which continue to the present day. It is the only history of the party that lists all its elected officials, and all the party’s national officers, through time. One of the appendices includes information about each of the party’s presidential election returns, showing the counties that gave the party its best showing.

More importantly, the book shows why the party never became a major party, even though parties with the same ideas did become ruling parties in many other advanced countries. Also, to an amazing extent, it shows how figures who participated in the party or its various off-shoots became highly influential, especially in civil rights, the labor movement, and foreign policy, even in the last few decades.

Anyone who has worked to build a political party that challenge the Republican and Democratic Parties will find the book a very good read. Even though the book is 753 pages, I read it within one week and enjoyed every hour.

The chart below lists the minor parties that elected nominees to the U.S. House of Representatives 1828-1948. The eight elections in which only the two major parties elected someone are not listed. The chart shows that during the 61 elections 1828-1948, all but eight years saw the election of at least one minor party nominee.

The chart does not list independents. For candidates who had the nomination of a major party and a minor party, they are listed if they were members of the minor party and if the state did not separate out the votes cast on each party line. If the state did separate out the number of votes cast on each line, then the minor party member is not listed if his or her major party vote was greater than his minor party vote. That is why Vito Marcantonio, an American Labor Party member, is not listed for years before 1948. He is listed for 1948 because the ALP won the 1948 race with votes cast on its line alone.

YEAR	MULTI-PARTY PAST OF US HOUSE OF REPRESENTATIVES
1828	Anti-Masonic (5)
1830	Anti-Masonic (17), Nullifiers (4)
1832	Anti-Masonic (25), Nullifiers (9)
1834	Anti-Masonic (16), Nullifiers (8)
1836	Anti-Masonic (7), Nullifers (6)
1838	Anti-Masonic (6), Conservative (2)
1842	Law and Order (2)
1844	American (6)
1846	American (1)
1848	Free Soil (9), American (1)
1850	Union (10), Free Soil (4), States Rights (3)
1852	Free Soil (4)
1854	American (51)
1856	American (14)
1858	Anti-Lecompton Democrats (8), Americans (5)
1860	Union (28), Constitution Union (2)
1862	Unconditional Union (16), Union (9)
1864	Unconditional Union (13), Union (5)
1866	Conservative (2)
1868	Conservative (5)
1870	Liberal Republican (2)
1872	Liberal Republican (4)
1878	Greenback (13)
1880	Greenback (10), Readjuster Demoratic (2)
1882	Readjuster (4), Greenback (2)
1884	Greenback (1)
1886	Labor (2), Greenback (1)
1888	Labor (1)
1890	Peoples (8)
1892	Peoples (11), Silver (1)
1894	Peoples 9), Silver (1)
1896	Peoples (22), Silver Republican (3), Silver (1)
1898	Peoples (5), Silver Republican (2), Silver (1)
1900	Peoples (5), Silver Republican (1)
1910	Socialist (1), Progressive Republican (1)
1912	Progressive (9)
1914	Progressive (6), Socialist (1), Prohibition (1)
1916	Progressive (3), Socialist (1), Prohibition (1)
1918	Prohibition (1), Union-Labor (1)
1920	Socialist (1), Prohibition (1)
1922	Farmer-Labor (2), Socialist (1)
1924	Farmer-Labor (3), Socialist-Progressive (1), Socialist (1)
1926	Farmer-Labor (2), Socialist (1)
1928	Farmer-Labor (1)
1930	Farmer-Labor (1)
1932	Farmer-Labor (5)
1934	Progressive (7), Farmer-Labor (3)
1936	Progressive (8), Farmer-Labor (5)
1938	Progressive (2), Farmer-Labor (1)
1940	Progressive (3), Farmer-Labor (1)
1942	Progressive (2), Farmer-Labor (1)
1944	Progressive (1)
1948	American Labor (1)

This chart lists the years in which a party, other than the two largest parties, elected someone to the U.S. House. Source: Ken Martis, "Historical Atlas of Political Parties in the US Congress."

On May 5, New York held a special election for Assembly, 43^rd district. The Working Families nominee, Diana Richardson, won with 52%. This outcome was not too surprising because the Democratic nominee had failed to get on the ballot, due to missing a deadline. Richardson defeated the nominees of the Republican Party and the Independence Party, and an independent candidate.

On April 28, Senator Bernie Sanders said he will seek the Democratic nomination, even though he is an independent. U.S. parties in the past have nominated non-members for President or Vice-President, and at first Sanders did not say he was giving up his independent identity. But on April 30, on his FEC report, he filled in the question "Party affiliation" as "Democratic Party." He did this because the New Hampshire Secretary of State had said he would not let Sanders on the Democratic ballot unless Sanders became a Democrat. Sanders could have defeated this ruling, with help from the Democratic Party. In 1986 the U.S. Supreme Court ruled that states cannot ban parties from nominating non-members, so the party and Sanders could have sued. Also New Hampshire permits write-ins in presidential primaries, and both Lyndon Johnson in 1968 and Henry Cabot Lodge in 1964 won a New Hampshire presidential primary on write-ins.

A Canadian poll released May 26 shows that the Conservative Party and the New Democratic Party are virtually tied, each with 30% of the vote. The New Democratic, has never before been thought of as a party that might form the national government.

On May 18, the web page of the Commission on Presidential Debates posted a form that asks viewers to comment on policies of the CPD, including the hot issue of who should be invited into the debates. Go to debates.org and choose the feedback form. Only one entry per computer is permitted. After anyone comments, he or she can print what has just been submitted.

At the British May 7 election, the Conservative Party won 51% of the seats even though it got only 37% of the popular vote. The Labour Party won 36% of the seats with 31% of the popular vote. The Scottish National Party won 9% of the seats with only 5% of the popular vote. The Liberal Democratic Party won 1% of the seats with 8% of the popular vote. UKIP and the Green Party each won only one seat, even though UKIP got 13% of the popular vote and Greens got 4%. These results have prompted renewed calls for Britain to switch to proportional representation.

Fox News will host the first Republican presidential debate on August 6, 2015. The Republican Party declined to formulate any rules on which candidates should be invited, so Fox determined that it will invite the ten candidates who are the most popular, as determined by polls.

Puerto Rico will hold Republican and Democratic presidential primaries on March 13, 2016, the first ones in Puerto Rico since 2008.