MINOR PARTIES WIN PENNSYLVANIA BALLOT ACCESS CASE
COURT COSTS OF UP TO $110,000 CANNOT BE IMPOSED

On July 24, U.S. District Court Judge Lawrence Stengel, a Bush Jr. appointee, struck down the Pennsylvania system for checking petition validity for minor parties. Constitution Party of Pennsylvania v Cortes, e.d., 12-cv-2726.

That system, in place starting in 2004, puts minor parties and independent candidates for statewide office into a terrible dilemma. If they submit a petition and it turns out not to have enough valid signatures, then they are liable for court costs and attorneys fees which can be as high as $110,000. Ralph Nader, independent presidential candidate in 2004, was the first victim of this system. His 2004 petition didn’t have enough valid signatures, even though he submitted twice as many as the 25,697 requirement. He was assessed $81,102. Even though he fought this outcome for years, while one of his appeals was still pending, almost half the money was seized from his bank account in Washington, D.C.

The next victim was Carl Romanelli, the Green Party nominee for U.S. Senate in 2006. He was ordered to pay $80,407, an amount far in excess of his assets.

After that, minor parties were generally afraid to submit statewide petitions in Pennsylvania. In 2008 only the Libertarian Party even tried, and its statewide petition was not challenged.

But in 2010, both the Libertarian Party and the Green Party withdrew their petitions after they were challenged. The parties were told they might owe as much as $110,000 if the petitions weren’t valid.

In 2012, the Constitution Party withdrew its petition after it was challenged.

The Green Party was not challenged in 2012, perhaps because its petition only nominated for President and Vice-President but not any of the other three statewide offices. The 2012 Libertarian Party petition was challenged, but the party defended its petition successfully.

In 2014 no minor party or independent candidate submitted a statewide petition. Pennsylvania that year was one of five states in which only Democrats and Republicans appeared on the November ballot for all statewide office (the others were Alabama, California, New Hampshire, and New Mexico).

The decision depends on the two U.S. Supreme Court decisions that struck down mandatory filing fees for candidates, and the earlier decision that struck down poll taxes. These decisions said that voters and candidates can’t be deprived of voting rights just because they can’t afford to pay. The decision also depends on decisions from Florida and North Carolina that struck down laws requiring petitioning groups to pay to have their petitions checked.

This case was already three years old. It had been filed in 2012 and Judge Stengel had ruled that the plaintiffs, the Constitution, Green, and Libertarian Parties, didn’t have standing. On July 9, 2014, the Third Circuit reversed that and sent the case back to U.S. District Court for a ruling on the merits.

The decision only apples to the three parties that filed the case, but it is clear that any other party, or any independent candidate, would have an easy time in court if costs were assessed in the future against them. As to Democrats and Republicans, they also petition to get themselves on primary ballots.

However, they never need more than 2,000 signatures, and furthermore the decision notes that no primary candidate has ever been subject to court costs.

The decision says, "The ability of the minor parties to organize and voice their views has been decimated" by the law." It points out that the burden is not just financial. When a petition is challenged, the petitioning candidate or group is expected to marshall dozens of volunteers who must sit all day in government offices, pairing up with volunteers for whomever challenged the petition. Each pair of adversaries must discuss each challenged signature, one at a time, to see if they can agree that the signature is either valid or invalid. Signatures with no consensus are put aside for a judge to settle. In 2012, the Libertarians had to find 70 volunteers to work on this process.

It is now very likely that the legislature will finally pass some ballot access reform bill. Earlier this year three other Pennnsylvania ballot access laws were struck down in a different federal case. And even before this year, there had been seven Pennsylvania ballot access laws that had been declared unconstituitonal, or enjoined, and the legislature has never repaired the election code to acknowledge those decisions either. The most shocking lapse is that in 1984 the May petition deadline for minor party and independent petitions was declared unconstitutional, and the state agreed to an August 1 petition deadline. But the code has never been amended to reflect this.

The case was won by Oliver Hall, who for a decade has been Ralph Nader’s ballot access attorney. Hall is the founder of the Center for Competitive Democracy.

On July 2, the Sixth Circuit upheld a U.S. District Court decision that struck down Tennessee’s law on how a party remains on the ballot. Green Party v Hargett, 14-5435. The Constitution Party was a co-plaintiff. Tennessee requires parties to poll 5% for any statewide office to retain qualified party status. When a party meets this vote test, it is then safely on the ballot for four more years.

But, when a new party gets on the ballot, by petition, it must pass the 5% vote test in its first election, or it is disqualified. It doesn’t have the luxury of being on for two elections. The U.S. District Court had found the law discriminatory, and had put the two plaintiff parties on the ballot for the 2014 election.

Kentucky is also in the Sixth Circuit, and the precedent might be used to improve Kentucky’s vote test, which is 2% for President. Once a party polls 2% for President in Kentucky, it is safely on the ballot for four years. For instance, in 1980, John Anderson polled 2.4% in Kentucky, under the ballot label "Anderson Coalition", and the state recognized it as a qualified party for the next four years. It did not use its status to run anyone at all until 1984, when it again put Anderson on the ballot for President (he was not on the ballot in any other state in 1984).

If there had been another minor party in existence in Kentucky that had got on the ballot in 1983 for the gubernatorial election, it might have done very well, but it would have been immediately removed because only President counts. The Libertarian Party polled 3.1% for US Senate in 2014, but it was immediately removed from the ballot afterwards because only President matters for retention. The Libertarian Party might be able to win a lawsuit that it should be on the ballot in 2016 without a petition, because the old parties are enjoying four years of status from their 2012 results, yet the Libertarian results in 2014 gave it nothing.

The U.S. District Court also struck down the Tennessee loyalty oath for new parties, and the Sixth Circuit again agreed with the U.S. District Court that that law is also unconstitutional. Tennessee tried to defend itself by saying that it doesn’t enforce the law, but the Sixth Circuit said, "The state has not explicitly disavowed enforcing it in the future" and so ruled against the law. The three judges were R. Guy Cole, Deborah L. Cook, and Helene N. White.

On May 26, in a special session of the Arkansas legislature, SB 8 was introduced. It moved the 2016 primary for all office from May to March. It also moved the petition deadline for a new party to September 2, 2015, and the non-presidential independent candidate petition deadline to November 9, 2015. The bill passed the legislature on May 28 and was signed the same day. It only applies to 2016 and afterwards is automatically repealed.

In the entire history of ballot access laws, no state has ever had petition deadlines that early. In 2000 the U.S. complained that Azerbaijan was violating international democratic norms by having a deadline for a new party to organize that was six months before an election, and yet now Arkansas had a petition deadline for new parties that is 14 months before the election.

The bill also says that newly-qualifying parties must nominate all their candidates for the 2016 election by November 9, 2015. It is likely that the Libertarian Party, which qualified a few months ago, will sue to overturn this deadline for nominating its candidates.

In the meantime, the case that challenges the old March petition deadline for 2014, for non-presidential independent candidates, has oral arguments on July 27. That case is Moore v Martin, e.d., 4:14cv-65.

On July 28, the California Libertarian Party, the Peace & Freedom Party, and the Green Party of Alameda County asked the U.S. Supreme Court to hear Rubin v Bowen, the case that says the California top-two system gives voters too little choice in general elections for Congress and partisan state office. The state Appeals Court had ruled against the parties, and the State Supreme Court had refused to hear the case.

On July 24, an independent candidate for U.S. Senate in Maryland filed a lawsuit against the number of signatures he needs. He needs approximately 38,000 signatures. The lawsuit points out that an entire new party can get on the ballot for 10,000 signatures, and says there can’t be any good reason to require a single independent candidate to get almost four times as many signatures as a new party. The purpose of ballot access laws is to keep ballots from being too crowded, and a new party can have a much greater impact on the ballot, because it can run a candidate for every partisan office.

Maryland requires more signatures for an independent candidate for U.S. Senate in 2016 than any other state except Texas, Georgia, and North Carolina. The candidate is Greg Dorsey and his lawsuit is Dorsey v Lamone, 1:15cv-2170.

On July 20, the North Carolina Senate passed HB 373, which moves the presidential primary from February 23 to March 15. On July 23, New York Governor Andrew Cuomo signed SB 5958, which moves the presidential primary from February 2 to April 19.

On June 30, the South Dakota Secretary of State said that a referendum petition aimed at stopping SB 69 has enough valid signatures. Therefore, SB 69, which passed the legislature earlier this year and which makes ballot access worse, can’t take effect in 2016. Instead, the voters will vote in November 2016 on whether to repeal SB 69.

SB 69 makes it more difficult for candidates to get on primary ballots, more difficult for independent candidates to get on the ballot, and sets an earlier petition deadline for new parties to submit petitions to be on the ballot.

The South Dakota Libertarian and Constitution Parties had already filed a lawsuit against the part of SB 69 that moves the deadline for a new party petition from March 29 to March 1. On July 9, the state asked the judge to dismiss the lawsuit, on the grounds that the new March 1 deadline won’t be in effect in 2016 and may never been in effect if the voters repeal it.

But, on July 21, the two parties told the court that their lawsuit is also aimed at the old March 29 deadline as well, so it doesn’t matter whether the deadline is March 1 or March 29; they are both too early.

South Dakota is the third example of a state in which a Republican legislature recently passed a law making ballot access worse, and then a referendum petition was successfully filed to stop the new law. The other two instances were Arizona and Ohio. In both of those states, after the referendum petition succeeded, the legislature then repealed the restrictions and the popular vote was never held (unfortunately the Arizona legislature in 2015 re-enacted one of the laws that it had repealed in 2013).

It is conceivable that the 2016 session of the South Dakota legislature might also repeal, or at least improve, SB 69.

On June 29, the U.S. Supreme Court ruled 5-4 that the state initiative process can be used to change state election laws that affect congressional elections. Arizona State Legislature v Arizona Independent Redistricting Commission, 13-1314. Article One of the Constitution says, "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof." The decision says that "legislature", in this context, means the initiative process as well.

In 2000, Arizona voters approved an initiative for a redistricting commission. The legislature would no longer draw U.S. House district boundaries; instead the Commission would do that. The legislature didn’t like the job the Redistricting Commission did in 2011, so it brought a lawsuit to try regain its power, but it has now lost. The legislature had also lost in the lower court.

Also on June 29, the U.S. Supreme Court refused to hear Kobach v U.S. Election Assistance Commission, 14-3062. The Tenth Circuit had ruled against the states of Kansas and Arizona, over whether those states could force the federal government to alter the federal voter registration forms to require applicants to attach proof of citizenship. The two states then asked for U.S. Supreme Court review, but failed to get it.

On July 25, the Oklahoma Democratic Party leadership voted to allow independent voters to vote in Democratic primaries. This will be the first time either major party has ever allowed Oklahoma independents to vote in their primaries. Other states in which Democrats have a semi-closed primary but Republicans have a closed primary are Idaho, South Dakota, and Utah.

Florida proponents of a top-two system have launched an initiative petition. For state and local partisan office, the election would be in August. All candidates would run on the same ballot and if anyone got 50%, he or she would be elected. If no one got 50% there would be a runoff in November.

But for Congress, all candidates would run in August on the same ballot, and then the top two candidates would run in November, whether anyone got 50% or more in August or not. So for Congress, the initiative would be similar to the system used in California and Washington. It is not clear from the initiative whether write-ins would be allowed in November for Congress.

On July 16, the Federal Election Commission rejected a request to rewrite the rules on general election presidential debates. Last year some influential figures had asked the FEC to require a more relaxed standard for entry into those debates. The vote was 4-2. Commissioners Ann Ravel and Ellen Weintraub, both Demorats, voted to consider a new rule.

The FEC still hasn’t responded to the lawsuit filed on the same subject. That lawsuit is Level the Playing Field v FEC, U.S. Dist. Ct., D.C., 15cv-961. However, if the lawsuit hadn’t been filed, it is likely the FEC wouldn’t even have voted on the rule-making proposal.

On July 25, Frank Fahrenkopf, co-chair of the Commission on Presidential Debates since 1987, appeared on the Smerconish Show on CNN and said the Commission will decide by October 2015 whether to expand entry. He mentioned a recent suggestion of the Annenberg Working Group on Presidential Debates that the first debate include all candidates at 10% in polls (the current rule is 15%).

The chart below shows that filing deadlines for presidential primary candidates are far kinder than petition deadlines for independent candidates.

No state requires a presidential primary candidate to file as early as 116 days before the primary. But 25 states require independent candidates for non-presidential office to file petitions at least 116 days before the general election. When states are sued over too-early deadlines for independents, they usually say that the early deadline is needed to administer the election. If this were true, there would be similar early deadlines for presidential primaries, but there aren’t.

State	Primary	General	Pres. Primary Date	Pres Primary Deadline	Independent Deadline
Ala.	90 days	245 days	March 1	Dec. 2, 2015	March 8
Ariz.	100 days	160 days	March 22	Dec. 14, 2015	June 1
Ark.	112 days	365 days	March 1	Nov. 9, 2015	Nov. 9, 2015
Cal.	68 days	242 days	June 7	March 31	March 11
Ct.	74 days	90 days	April 26	February 12	August 10
Del	60 days	116 days	April 26	February 26	July 15
D.C.	90 days	89 days	June 14	March 16	August 11
Fla.	106 days	186 days	March 15	Nov. 30, 2015	May 6
Ga.	60 days	119 days	March 1	Dec. 30, 2015	July 12
Ida	90 days	242 days	March 8	Dec. 9, 2015	March 11
Ill.	106 days	134 days	March 15	Nov. 30, 2015	June 27
Ind.	98 days	131 days	May 3	January 26	June 30
Ky.	112 days	91 days	May 17	January 26	August 9
La.	92 days	81 days	March 5	Dec. 4, 2015	August 19
Md.	83 days	99 days	April 26	February 3	August 1
Mass.	61 days	98 days	March 1	Dec. 31, 2015	August 2
Mich.	114 days	110 days	March 8	Nov. 15, 2015	July 21
Miss.	84 days	304 days	March 8	Dec. 15, 2015	January 8
Mo.	77 days	106 days	March 15	January 2	July 25
Mt.	75 days	161 days	June 7	March 24	May 31
Neb.	60 days	67 days	May 10	March 11	September 2
N.H.	70 days	90 days	January 26	Nov. 17, 2015	August 10
N.J.	64 days	154 days	June 7	April 4	June 7
N.M.	115 days	133 days	June 7	February 13	June 28
N.Y.	75 days	77 days	April 19	February 4	August 23
No.C.	90 days	152 days	March 8	Dec. 9, 2015	June 9
Ohio	90 days	239 days	March 15	Dec. 16, 2015	March 14
Okla.	83 days	207 days	March 1	Dec. 9, 2015	April 15
Ore.	70 days	70 days	May 17	March 8	August 30
Pa.	70 days	99 days	April 26	February 16	August 1
P. Rico	60 days	?? days	March 13	January 13	???
R.I..	94 days	116 days	April 26	January 23	July 15
So.C.	89 days	116 days	February 20	Nov. 23, 2015	July 15
So.D.	70 days	196 days	June 7	March 29	April 26
Tenn.	91 days	215 days	March 1	Dec. 1, 2015	April 7
Tex.	84 days	138 days	March 1	Dec. 8, 2015	June 23
Vt.	50 days	82 days	March 1	January 11	August 18
Va.	82 days	147 days	March 1	Dec. 10, 2015	June 14
Wash.	75 days	172 days	May 24	March 10	May 20
W.Va.	101 days	99 days	May 10	January 30	August 1
Wis.	91 days	160 days	April 5	January 5	June 1
MEDIAN	84 days	133 days	March 15	January 5	June 28

The "Primary" column tells the INTERVAL in days between a presidential primary and the deadline for candidates to file for that primary. The "General" column tells the INTERVAL between the general election and the deadline for independent candidates for U.S. Senate to submit petitions. All dates are in 2016, unless they say "2015". The chart shows the disparity between how some states treat presidential primary candidates and how they treat independent candidates. Presidential primary candidates always have reasonable deadlines, not far from the date of the primary.

States with no presidential primaries are not included above.

The chart below shows that Republican presidential primaries in recent years have sometimes been crowded. In 1996 and 2008 there were an average of 8 candidates. In 2016 there are likely to be many states with at least 16 candidates. Yet, no legislature this year has made access to presidential primary ballots any more difficult. Arizona this year made it easier. This shows that state legislatures don’t really believe that ballots with a dozen candidates for a single office cause voter confusion.

State	2012	2008	2004	2000	1996	1992	1988	1984	1980	1976
Alabama	8	11	2	3	4	3	6	– –	8	– –
Arizona	23	24	– –	9	20	– –	– –	– –	– –	– –
Arkansas	4	7	2	2	3	2	7	– –	– –	3
California	6	11	.1	6	9	2	3	1	5	2
Colorado	– –	– –	– –	6	6	7	– –	– –	– –	– –
Connecticut	5	9	– –	7	10	4	5	– –	9	– –
Delaware	4	6	– –	6	7	– –	– –	– –	– –	– –
D.C.	4	5	– –	2	3	2	3	1	5	2
Florida	9	9	– –	6	9	2	6	1	9	2
Georgia	9	9	1	6	10	2	6	1	9	3
Idaho	– –	3	2	3	4	3	3	2	5	3
Illinois	6	9	1	5	8	3	6	1	8	2
Indiana	4	4	1	2	3	2	4	1	3	– –
Kansas	– –	– –	– –	– –	– –	16	– –	– –	13	– –
Kentucky	5	7	2	6	8	2	8	– –	6	4
Louisiana	9	11	2	5	6	7	6	2	7	– –
Maine	– –	– –	– –	6	9	– –	– –	– –	– –	– –
Maryland	8	9	1	6	9	2	6	1	4	2
Mass.	8	9	2	7	10	4	7	2	10	3
Michigan	12	10	– –	7	10	4	– –	– –	6	3
Minnesota	– –	– –	– –	– –	– –	8	– –	– –	– –	– –
Mississippi	8	9	– –	6	11	5	4	– –	3	– –
Missouri	11	13	4	8	– –	– –	7	– –	– –	– –
Montana	5	3	2	3	4	3	3	2	3	3
Nebraska	4	2	1	3	8	5	4	1	7	2
Nevada	– –	– –	– –	– –	12	– –	– –	– –	3	3
New Hamp.	30	21	14	14	22	25	12	5	7	2
New Jersey	4	6	1	2	3	2	1	1	3	1
New Mex.	4	2	1	4	8	3	5	2	7	– –
New York	4	5	– –	4	3	– –	– –	– –	– –	– –
No. Car.	5	5	– –	5	7	3	7	– –	8	3
No. Dakota	– –	– –	– –	– –	8	2	2	1	– –	– –
Ohio	6	5	1	5	6	2	3	1	2	2
Oklahoma	7	11	2	5	10	5	7	– –	– –	– –
Oregon	4	2	1	2	9	3	3	1	4	2
Pennsyl.	4	3	1	4	5	2	3	1	7	1
Puerto Rico	6	– –	– –	5	– –	3	2	– –	2	– –
Rhode Is.	6	7	2	7	5	4	7	1	5	3
So. Caro.	9	11	– –	6	8	4	7	– –	8	– –
So. Dakota	5	5	– –	4	8	2	6	– –	4	3
Tennessee	10	10	2	7	10	4	7	2	5	3
Texas	9	11	2	8	12	6	7	2	3	– –
Utah	5	8	– –	5	– –	– –	– –	– –	– –	– –
Vermont	6	5	1	5	7	– –	6	1	7	1
Virginia	2	6	– –	5	– –	– –	7	– –	– –	– –
Wash.	– –	8	– –	6	8	4	– –	– –	– –	– –
West Va.	5	7	1	5	8	3	6	2	3	2
Wisconsin	7	9	2	7	10	6	7	2	9	3
MEDIAN	6	8	2	5	8	3	6	1	6	2.5
AVERAGE	7.25	7.98	2.04	5.34	8.10	4.38	5.38	1.52	5.91	2.42

The July 1 BAN said that Pennsylvania’s Governor had appointed an independent, Timothy Reese, to be State Treasurer to fill a vacancy, but that the legislature hadn’t acted on the nomination. But since then, the Senate did approve the nomination. Treasurer is a partisan elected office up in presidential years. However, Reese has said he won’t run for a full term.

The Constitution Party presidential convention will be April 13-16, 2016, in Salt Lake City.

On July 22, Maine Representative Larry Dunphy said he has changed his registration from Republican to independent. This is the seventh time this year that a state legislative seat has switched from being held by a Democrat or a Republican, to being held by an independent or minor party nominee.

The Party for Socialism and Liberation has become the first party to announce its 2016 presidential nominee (if "party" is defined as a group that is ballot-qualified in at least one state; PSL is qualified in Florida). The ticket is Gloria La Riva for President and Eugene Puryear for Vice-President.

Free & Equal will hold a rally/festival at the Belasco Theater in Los Angeles on September 19, 2015, between 5 pm and 10 pm. Free & Equal held a similar event at the same location last year. The event always attracts a big audience and aims to get youth interested in running for office, voting, and other forms of political activism. Free & Equal uses these events to increase public awareness of flaws in the U.S. election process. Free & Equal hosted the only 2012 televised general election presidential debates that included candidates other than the Democratic and Republican nominees.

During July the Green and the Constitution Parties qualified for presidential ballot access in Arkansas.