U.S. DISTRICT COURT ENJOINS CONNECTICUT BAN ON OUT-OF-STATE CIRCULATORS

On January 27, U.S. District Court Judge Janet C. Hall, a Clinton appointee, enjoined the Connecticut law that bans out-of-state circulators. Libertarian Party of Connecticut v Merrill, 15-cv-1851.

The opinion says, "The Party is substantially likely to succeed on the merits of a facial challenge to the statutes at issue." Technically, the law has not yet been declared unconstitutional, but the injunction could not have been granted if the judge didn’t believe the law is void.

The Libertarian Party was represented by the American Civil Liberties Union. The ACLU had been negotiating with the state for months before the lawsuit was finally filed on December 22, 2015. The ACLU had been trying to persuade the state to admit the law was unconstitutional, to avoid the necessity for filing a lawsuit. In the end, the state decided to try to defend its law. But, as a result of the injunction, it is likely the state will agree that the law is unconstitutional, and further proceedings may not be needed.

New Jersey and New York are now the only states that still ban out-of-state circulators for minor party or independent candidate petitions. Also South Dakota permits out-of-state circulators for petitions to create a new party, but bans them for petitions to place independent candidates on the ballot, and for petitions to put minor party candidates on that party’s own primary ballot.

On January 5, Michigan Governor Rick Snyder signed SB 13, eliminating the straight-ticket device. The legislature had passed the bill on December 16.

On January 26, U.S. District Court Judge Karen Schreier issued a procedural ruling in Libertarian Party of South Dakota v Krebs, 4:15cv-4111. This is the case that challenges South Dakota’s March petition deadline for newly-qualifying parties.

The order says the Libertarian and Constitution Parties do have standing. It also gives them permission to amend their Complaint, which had been filed on June 15, 2015. Without an amended Complaint, the lawsuit would have been over. When the case was filed, the petition deadline was March 1. Afterwards, a referendum petition against the law that set that deadline was found to have enough signatures, which meant the new law wouldn’t go into effect (at least until after the voters vote on it, in November 2016). So the deadline for the 2016 election is March 29, not March 1. The parties have now amended their Complaint to attack the March 29 deadline as well.

Bills in Oklahoma and Tennessee have been introduced to improve ballot access for minor parties. In Oklahoma, SB 896 by Senator Kyle Loveless (R-Oklahoma City) would lower the vote test for a party to remain on the ballot from 10%, to 2.5%. In Tennessee, SB 2528 and HB 2457 would lower the petition to create a new party from 2.5% of the last gubernatorial vote, to 1.5%. The authors are Senator Mae Beavers (R-Mt. Juliet) and Representative John Windle (D-Livingston).

Bills to pass the National Popular Vote Plan in Arizona are being co-sponsored by 72% of the legislators. The bills are HB 2456, which has 45 co-sponsors out of 60 House members; and SB 1218, which has 20 co-sponsors out of 30 Senators.

It seems likely the bills will pass. That will be the first time the Plan has passed in a state in which both houses of the legislature have Republican majorities. So far the plan has passed in states that have 165 electoral votes. It will go into effect when that total reaches 270. The Plan says that the participating states agree that whichever presidential candidate receives the most popular votes will win all the electoral votes from those states. Thus, it would be impossible for anyone to be elected President who had fewer popular votes than another candidate.

As noted in the last B.A.N., on December 9 the Maine Secretary of State said that the Libertarian Party registration drive had failed to obtain at least 5,000 registered members by the December 1, 2015 deadline, so the party is not qualified for 2016 and loses all its registrants.

On January 4, the party filed a federal lawsuit, Libertarian Party of Maine v Dunlap, 2:16cv-2. The lawsuit argues that the December 1 deadline is far too early to be constitutional. It also argues that it violates due process for the Secretary to have rejected almost one-third of all the registration forms, because of tiny flaws in each form.

On January 21, the Arizona proponents of a top-two system unveiled the language of their new initiative, and began circulating the petition to get it on the ballot. It is due in July 2016. A top-two system provides that all candidates run on a single primary ballot. Then, only the two candidates who get the most votes can run in November.

Last year the proponents had said they would write their initiative to leave party labels off ballots (for every office except President), but they changed their mind, and will keep party labels on the ballot. However, the wrote it so that the only party labels that could appear on the ballot would be the names of qualified parties. They believe that their initiative, as written, would require candidates who are registered into unqualified parties to have "PND" on the ballot. That stands for "party not determined." A spokesperson for the sponsors said this was done to stop "bogus" party labels from being printed on the ballot.

The plain language of the initiative does not do what its backers desire, however. It says, "The affiliation listed on the ballot must match the affiliation listed on the candidate’s voter registration." The proponents did not realize that Arizona voters are allowed to register into unqualified parties.

Another problem is that the initiative prints the names of qualified parties on the ballot, next to the names of candidates who are members of those parties, without a qualifier.

The U.S. Supreme Court ruled in Washington State Grange v Washington State Republican Party in 2008 that top-two systems violate freedom of association if the ballot causes voters to believe that the party label means that the party approves of that candidate, or that the party nominated the candidate.

That is why the two states with top-two systems, California and Washington, provide that the labels have a qualifier to demonstrate that there is no true link between the party and the candidate. That is why Washington state ballot labels say "Prefers Republican Party", and why California ballots say, "Party preference: Republican." But the Arizona initiative simply provides that the party name go on the ballot, with no other word.

If the initiative gets on the ballot and passes, the legislature would be free to provide for a qualifying term, such as "prefers". However, it is believed that a majority of legislators do not favor this top-two initiative, and therefore they would be unlikely to repair the problem.

The Alaska Democratic Party has asked the State Division of Elections to let registered independents seek a Democratic Party nomination. The law says only party members may be nominated. The party says it has a right to nominate non-members if it wishes, and if the state says "No", the party will probably sue.

In 1986 the U.S. Supreme Court said in Tashijan v Republican Party of Connecticut that parties have a right to nominate non-members.

Congressional Quarterly Press, a division of SAGE Publications, has just published America Votes 31 by Rhodes Cook. It has election returns for 2013 and 2014 elections for all federal office and Governor. It includes the vote for U.S. Senate and Governor by county, for each state. It includes primary elections. There is no better reference book for elecction returns. The series has been published for 60 years, with a volume appearing every two years.

Arizona: Senator Martin Quezada and Representative Richard Andrade, both Democrats, have introduced SB 1027, to let independent voters vote in presidential primaries. Independents can already vote in non-presidential primaries.

D.C.: Councilmembers Jack Evans and Anita Bonds have introduced B21-576, which would let political parties that have presidential primaries provide that no petitions are needed to get on the presidential primary ballot. Current law requires 1,000 signatures, or 1% of party membership, whichever is less.

Missouri: Representative Shamed Dogan (R-Ballwin) has introduced HB 1771, which would legalize fusion if both parties adopt rules permitting fusion. Fusion is the ability of two parties to jointly nominate the same person. The bill includes new parties (which nominate by convention) as well as established parties.

Nebraska: Senator John Murante (R-Gretna) has introduced LB 879, which increases the number of signatures for an independent presidential candidate from 2,500 to 10% of the number of registered voters in the state, which would be 115,885. The number of signatures for other statewide independents would rise from 4,000 to 115.885 as well. It is not known why he introduced this bill.

New Hampshire: four Representatives have introduced HB 1521, to allow approval voting. In approval voting, voters may vote for as many candidates as they wish, even if only one person is being elected.

New Mexico: Representatives Moe Maestas and Stephanie Richard, both Democrats, have introduced HJR12, to let independents vote in partisan primaries.

South Dakota: nine Republican legislators have introduced SB 95, to let candidates get on primary ballots without a petition, if they pay a fee of 1% of the annual salary.

Primary Politics, 2^nd edition, by Elaine C. Kamarck, Brookings Institution Press, 2016, 220 pages.

Although the author is an academic and a scholar, she is also a veteran of many years holding a high position in the national Democratic Party, and in various Democratic presidential campaigns. The strength of her book is that she was on the inside of the upper reaches of the Democratic Party during many of the years in which the that party was trying to reshape the presidential primary system. The book could be considered a history of the countless national Democratic commissions from 1970 to the present.

She is also well-informed about the Republican Party’s attempts to reshape the presidential primary system. As she points out, however, it is the Democrats who have put the most work into altering presidential primaries.

Between 1968 and today, the methods used by the two major parties to nominate presidential candidates has changed completely. In 1968, Hubert Humphrey became the Democratic nominee even though his name did not appear on the presidential primary ballot in any state. Now, it is unthinkable that the major parties would ever nominate someone for president who hadn’t run in virtually all the primaries.

Kamarck explains in an entertaining way how the order of presidential primaries has a very large impact on which candidate wins a nomination. She describes how Presidents, Vice-Presidents running for President, and other powerful actors have understood this and have exerted a great deal of effort to manipulate the order in which states vote. These individuals include Jimmy Carter, Walter Mondale, Al Gore, Ronald Reagan, and Barack Obama. It is plausible that Kamarck is the first author to tell the complete story.

The book also explains in detail how Iowa and New Hampshire have been able to continue to be the first two states to choose convention delegates. It talks about the shift away from major contenders applying for primary season matching funds.

The book describes the decline of winner-take-all primaries in the Democratic Party, and the partial shift away in the Republican Party. It talks about the necessity for major party presidential candidates to recruit and file complete slates of candidates for Delegate. It describes the 1984 Democratic race, in which Gary Hart might have been the nominee if only he had done a better job of getting candidates for Delegate. It talks about how the rules were changed to give presidential candidates far more power to pick their own delegates than in the past.

The book has a great deal of information about the complicated rules that translate primary votes into delegate apportionment. The history of the changes in formulas, especially for Democrats, is actually very funny.

The book’s subtitle, "Everything you Need to Know about How America Nominates its Presidential Candidates" is not accurate. The book contains nothing about how Democratic and Republican candidates for President get themselves on primary ballots. Also, nothing in the book covers presidential candidates who run outside the two major parties.

Arizona: on January 11, the Court refused to hear the lawsuit filed by the Libertarian and Green Parties against voter registration forms that only include the two largest parties with a checkbox for each. If a voter wants to register into any other party, whether it is qualified or not, the voter must write-in the name of that party. Arizona Libertarian Party v Bennett, 15-598.

Michigan: on January 25, the Court refused to hear Erard v Johnson, 15M76. The plaintiff, an activist in the Socialist Party, challenged the law that requires approximately twice as many signatures for a new party to get on the ballot than the number of votes needed for an old party to remain on. The clerk of the court felt that the case had been filed a day too late, and the Court did not countermand the clerk.

Ohio: on January 14, the Court refused a request from the Libertarian Party for injunctive relief in Libertarian Party v Husted, 15A725. The party argued that the 2013 ballot access law violates the Ohio Constitution, and that the federal courts do have authority to decide that issue (the lower courts had said the issue belongs in state court). Five days later, the party then filed a new lawsuit in state court. Libertarian Party of Ohio v Husted, Franklin County Court of Common Pleas, 16-cv-554.

On January 27, U.S. District Court Judge Yvette Kane denied injunctive relief in Benezet Consulting v Cortes, m.d., 1:16cv-74. The case had been filed by a petitioning firm that wants to collect signatures for presidential primary candidates in Pennsylvania. The petitioning period started on January 26 and is only three weeks long. The plaintiff wanted relief from the three laws declared unconstitutional last year for general election petitions in Pennsylvania (the ban on out-of-state petitioning, notarization of forms, and whether voters can sign for more than one candidate).

But the judge said the Benezet case was filed too late, so no injunction was issued. It had been filed on January 14. The constitutionality of the three laws, as applied to primary petitions, will be settled later.

The chart below shows the vote by state, by party, for U.S. House of Representatives, in 1914. This chart is included to rebut the idea that, given the Constitutional structure of the United States, a multi-party system is impossible. In 1914 the ballot access laws were far more lenient than they are today. As a result, the nation had five thriving political parties in 1914, each one of which won a congressional election that year. The partisan lineup of the U.S. House following the 1914 election was: 230 Democrats, 198 Republicans, 6 Progressives, 1 Socialist, 1 Prohibitionist, and 1 independent.

The chart, and that tally, include the results from Alaska and Hawaii. They elected a non-voting Delegate to the House. That is why the total number of seats is 437.

The 1914 election was not unique. The 1916 election also saw wins for each of those five parties.

STATE	REPUBLICAN	DEMOCRATIC	PROGRESSIVE	SOCIALIST	PROHIBITION
Alab.	12,832	64,141	3,742	1,143	0
Alas.	6,283	3,416	0	1,090	0
Ariz.	7,586	33,306	0	3,773	0
Ark.	4,087	32,509	1,781	0	0
Cal.	380,493	158,476	141,571	68,215	71,589
Colo.	99,900	118,211	16,985	6,965	0
Conn.	89,000	78,110	6,734	5,718	1,616
Del	22,922	20,681	1,653	463	0
Fla.	0	23,951	0	0	0
Ga.	0	80,537	640	0	0
Hi.	8,590	2,609	610	0	0
Ida.	45,365	39,736	8,295	8,093	1,329
Ill.	417,978	391,454	119,159	42,841	7,644
Ind.	233,140	275,891	90,040	19,507	11,703
Iowa	212,865	162,982	19,605	8,153	4,602
Kan.	188,056	195,830	74,401	14,001	11,345
Ky.	123,518	173,374	15,018	4,231	150
La.	0	40,545	8,876	1,344	0
Me.	60,264	60,649	17,883	1,830	257
Md.	95,586	111,410	3,188	2,421	3,518
Mass.	222,850	189,197	30,118	5,524
Mich.	218,445	149,762	47,700	10,177	3,624
Minn.	181,482	87,305	24,737	29,296	0
Miss.	0	35,830	0	1,125	0
Mo.	240,897	318,587	22,747	17,149	602
Mont.	26,161	37,011	6,694	12,278	0
Nebr.	110,839	112,309	3,141	5,044	2,294
Nev.	8,915	8,031	0	4,294	0
N.H	42,450	35,241	2,380	1,054	0
N.J.	179,930	173,183	14,584	14,581	4,993
N.M.	23,812	19,805	1,695	1,101	0
N.Y.	619,150	551,666	79,125	61,415	29,013
No.C.	79,842	122,129	341	352	0
No.D.	50,792	26,684	0	6,163	0
Ohio	480,482	484,348	50,911	49,905	1,779
Okla.	75,784	112,161	4,236	52,940	515
Ore.	102,107	67,349	8,521	9,596	32,150
Pa.	529,530	313,726	193,106	43,932	27,561
R.I.	39,001	35,190	1,321	1,666	575
So.C.	30	33,077	0	71	0
So.D.	52,844	37,842	1,501	2,688	1,850
Tenn.	47,932	149,248	7,753	3,530	0
Tex.	10,605	177,303	1,581	24,276	0
Utah	54,940	51,927	1,130	6,673	0
Vt.	36,980	13,685	9,545	1,073	0
Va.	22,969	53,751	210	2,497	0
Wa.	128,001	96,652	66,666	32,512	10,230
W.V.	110,520	106,042	8,818	11,944	1,931
Wis.	159,370	115,501	0	28,763	5,247
Wyo.	21,362	17,246	1,308	1,693	0
TOT.	5,871,614	5,793,581	1,119,440	632,010	236,117

The January 2016 Ballot Access News listed all the candidates who got on 2016 presidential primary ballots in Alabama, Arizona, Idaho, Louisiana, Massachusetts, North Carolina, Ohio, Oklahoma, Tennessee, Texas, and Virginia. The December 2015 issue had the same information for Arkansas, Florida, Michigan, New Hampshire, and South Carolina. The January issue showed that Willie Wilson and Martin O’Malley were on the ballot in the Ohio Democratic primary, but after that issue came out, it was determined that neither one of them had enough valid signatures, so they are off in Ohio.

The chart below shows the same information for nine more states, for candidates who have been put on ballots since the January issue came out. Also this chart repeats the North Carolina data from last time, because it was incomplete in the January issue. This page lists candidates in Illinois and Indiana who have filed petitions, but it is not certain that all those who filed petitions will be on the ballot, because the petition review period is still underway in those two states.

DEMOCRATS	GA.	ILL.	IND.	KY.	MISS	MO.	N.C.	P.RICO	VT.	WI.
Jon Adams,	X	X	X	X	X	X	X	X	X	X
Hillary Clinton, New York	X	X	X	X	X	X	X	X	X	X
Larry Cohen, Illinois	X	X	X	X	X	X	X	X	X	X
Rocky De La Fuente, California	X	X	X	X	X	X	X	X	X	X
Henry Hewes, New York	X	X	X	X	X	X	X	X	X	X
Keith Judd, Texas	X	X	X	X	X	X	X	X	X	X
Martin J. O’Malley, Maryland	X	X	X	X	X	X	X	X	X	X
Bernie Sanders, Vermont	X	X	X	X	X	X	X	X	X	X
Michael Steinberg, Florida	X	X	X	X	X	X	X	X	X	X
Mark Stewart, New Hampshire	X	X	X	X	X	X	X	X	X	X
Willie Wilson, Illinois	X	X	X	X	X	X	X	X	X	X
John Wolfe, Tennessee	X	X	X	X	X	X	X	X	X	X
X
REPUBLICANS	X	X	X	X	X	X	X	X	X	X
Jeb Bush, Florida	X	X	X	X	X	X	X	X	X	X
Ben Carson, Florida	X	X	X	X	X	X	X	X	X	X
Chris Christie, New Jersey	X	X	X	X	X	X	X	X	X	X
Ted Cruz, Texas	X	X	X	X	X	X	X	X	X	X
Carly Fiorina, Virginia	X	X	X	X	X	X	X	X	X	X
Jim Gilmore, Virginia	X	X	X	X	X	X	X	X	X	X
Lindsey Graham, South Carolina	X	X	X	X	X	X	X	X	X	X
Mike Huckabee, Florida	X	X	X	X	X	X	X	X	X	X
John R. Kasich, Ohio	X	X	X	X	X	X	X	X	X	X
Jim Lynch,	X	X	X	X	X	X	X	X	X	X
George Pataki, New York	X	X	X	X	X	X	X	X	X	X
Rand Paul, Kentucky	X	X	X	X	X	X	X	X	X	X
Marco Rubio, Florida	X	X	X	X	X	X	X	X	X	X
Rick Santorum, Virginia	X	X	X	X	X	X	X	X	X	X
Donald Trump, New York	X	X	X	X	X	X	X	X	X	X
X
LIBERTARIANS	X	X	X	X	X	X	X	X	X	X
Marc Allen Feldman, Ohio	X	X	X	X	X	X	X	X	X	X
John David Hale, Kentucky	X	X	X	X	X	X	X	X	X	X
Cecil Ince, Misssouri	X	X	X	X	X	X	X	X	X	X
Gary Johnson, New Mexico	X	X	X	X	X	X	X	X	X	X
Steve Kerbel, Colorado	X	X	X	X	X	X	X	X	X	X
Darryl Perry, New Hampshire	X	X	X	X	X	X	X	X	X	X
Austin Petersen, Missouri	X	X	X	X	X	X	X	X	X	X
Derrick Reid, California	X	X	X	X	X	X	X	X	X	X
Jack Robinson, South Carolina	X	X	X	X	X	X	X	X	X	X
Rhett Smith, Texas	X	X	X	X	X	X	X	X	X	X
Barbara Joy Waymire, California	X	X	X	X	X	X	X	X	X	X

On January 23, the news leaked out that former New York city Mayor Mike Bloomberg is thinking about running for President as an independent candidate. He seems likely to decide in March. All of the deadlines for someone to get on the ballot (using the later method, new party or independent) are in the period June-September, except that the Texas deadlines are in May. Probably Bloomberg could postpone his decision to April, except for the Texas deadline problem. It is possible the Texas deadline is unconstitutional. Courts have invalidated five June deadlines (Alaska, Arizona, Kansas, Nevada, and South Dakota), so it doesn’t seem rational for Texas to stick with May.

On January 6, former New Mexico Governor Gary Johnson said he will seek the Libertarian presidential nomination. His announcement came too late for him to qualify for the Missouri Libertarian presidential primary.

On January 8, Nevada Assemblymember John Moore announced that he has switched his registration from "Republican" to "Libertarian." He had been elected to his first term in 2014, although in 2012 he had run for the same seat as a Democrat, but he did not win the Democratic primary. He intends to seek re-election as a Libertarian this year.

The Reform Party will hold its presidential convention July 29-31 in Babylon, New York. That date is immediately after the two major party conventions.

The chart on page four shows the vote by state, by party, for U.S. House of Representatives, in 1914. This chart is included to rebut the idea that, given the Constitutional structure of the United States, a multi-party system is impossible. In 1914 the ballot access laws were far more lenient than they are today. As a result, the nation had five thriving political parties in 1914, each one of which won a congressional election that year. The partisan lineup of the U.S. House following the 1914 election was: 230 Democrats, 198 Republicans, 6 Progressives, 1 Socialist, 1 Prohibitionist, and 1 independent.

The chart, and that tally, include the results from Alaska and Hawaii. They elected a non-voting Delegate to the House. That is why the total number of seats is 437.

The 1914 election was not unique. The 1916 election also saw wins for each of those five parties.

The usual chart that shows the progress of 2016 petition drives will return in the March issue. During January, the only significant headway for any petition was the Oklahoma Libertarian petition drive, which is now finished.

Jill Stein, who is seeking the Green Party nomination, seems likely to qualify for primary season matching funds. She has forwarded documentation to the Federal Election Commission that she has received over $5,000 from each of 21 states. She only needs 20 states. The first check is likely to be issued in February, and the money can be used for general election petitioning for the Green Party. She also received matching funds in 2012, but not until August 2012, too late to do much petitioning.