U.S. DISTRICT COURT INVALIDATES ALABAMA 3% PETITION FOR SPECIAL U.S. HOUSE ELECTIONS

On September 30, U.S. District Court Judge Myron Thompson ruled that Alabama cannot require a petition of 3% of the last gubernatorial vote for minor party and independent candidates in special U.S. House elections. Hall v Bennett, m.d. 2:13-cv-663. This had been the second-oldest ballot access lawsuit still undecided. The only case that is older is the Tennessee lawsuit over the petition for newly-qualifying parties, filed in 2012, still pending.

The Alabama case arose in 2013 when Alabama called a special election to replace Congressman Jo Bonner, who had resigned August 2. Two independent candidates, James Hall and John Merrill, petitioned. They each needed 5,938 valid signatures. Both petitions failed, because the deadline was September 29, 2013. Both of them sued, arguing that even though they had worked hard, it wasn’t practical for anyone to get that many signatures within a single district in such a short time.

James Hall worked especially hard. He or his wife knocked on 5,000 doors to get signatures. Hall submitted 2,835 signatures.

The decision is 68 pages and is very thorough. This is the first time Alabama has lost a constitutional ballot access case since 1991.

On October 28, the state filed a notice of appeal to the Eleventh Circuit. However, the decision is so strong, it is difficult to imagine how the state can hope to prevail. In the history of government-printed ballots, no independent has ever qualified for a special U.S. House election in Alabama.

Judge Thompson had upheld the 3% petition requirement for regularly-scheduled elections in 2006. He is a Carter appointee.

Thompson’s decision does not mention that in 1982, the Eleventh Circuit ruled in a Georgia case that in special elections, states must relax the deadline or lower the number of signatures. Citizens Party of Georgia v Poythress, 683 F 2d 418 (table cite).

The lead story in the September 1, 2016 BAN was the decision of a U.S. District Court in Illinois to put an independent candidate for U.S. House on the ballot, even though he had not collected 10,754 signatures.

Unfortunately, on September 9, the Seventh Circuit stayed that decision. The Seventh Circuit did not explain why it did that, but it means that the candidate, David Gill, is off the ballot. The Seventh Circuit order was signed by Judges William Bauer, Richard Posner, and David Hamilton. It says only, "The motion for stay is granted. The district court’s order enjoining defendants from enforcing the Illinois Election Code’s signature requirement against David M. Gill is stayed pending resolution of this appeal. The motion to dismiss is denied."

This does not mean that the case has been lost. The U.S. District Court had based its order on the evidence that in the entire history of the nation, only three petitioning candidates for U.S. House have ever succeeded in overcoming a petition requirement greater than 10,754. The state has produced no evidence to counter that fact. No other U.S. House petition succeeded in Illinois this year.

Gill asked the three judges to reconsider the stay, but on September 20 they declined to do so. Gill also asked for en banc review, but that was denied on October 6. Gill asked U.S. Supreme Court Justice Elena Kagan for relief, but she denied it on September 25, without even referring it to the full court. Gill asked Justice Anthony Kennedy for relief on September 30, but Kennedy denied it on October 4, again without referring the matter to the full Court. The U.S. Supreme Court actions were not surprising, since by then the ballots had already been printed.

The case now returns to U.S. District Court for a decision on whether the 5% requirement, plus the 90 day petitioning period, is too difficult, given the historical record.

Judges Posner and Bauer have records of hostility to ballot access cases. This was Posner’s fourth ballot access decision; he has never voted favorably on ballot access. He voted to uphold Indiana’s petition requirement in 1985; he voted against ballot access for Ralph Nader in Illinois in 2004; he voted to uphold the Illinois 5% petition for U.S. House in 2009, in the Stevo case.

Posner made news in June 2016 when he wrote, "I see absolutely no value to a judge of spending decades studying the Constitution…18^th Century guys could not foresee the culture, technology, etc., of the 21^st century. Which means that the original Constitution, the Bill of Rights, and the post-Civil War amendments do not speak to today. David Strauss is right: the Supreme Court treats the Constitution like it is authorizing the court to create a common law of constitutional law, based on current concerns, not what those 18^th-century guys were worrying about."

On September 15, the Florida Supreme Court ordered a new election for Mayor of Miami Gardens, because James Wright had been unlawfully kept off the ballot in the first election. The new election is November 8. It is rare for a court to ever order a new election on the grounds that a candidate had unfairly been kept off the ballot in the original election. Wright v City of Miami Gardens, SC16-1518.

Wright was off the ballot because the bank bounced his filing fee check. However, the bank had made an error, and should have honored the check. The court struck down the law that says, "Failure to pay the fee shall disqualify the candidate."

The decision says, "Unreasonable and unnecessary restrictions on the elective process are a threat to our republican form of government. At their worst, they cloak tyranny in the garb of Democracy. See Thomas Paine, Dissertation on the First Principles of Government (1795). The decision then quotes from that work, "The right of voting for representatives is the primary right by which all other rights are protected. To take away this right is to reduce a man to slavery, for slavery consists in being subject to the will of another, and he that has not a vote in the election of representatives is in this case."

U.S. District Court Judge Tanya Chutkan will hear Level the Playing Field v Federal Election Commission on January 5, 2017, at 10 a.m. in courtroom 2, in the federal courthouse in Washington, D.C. This is the lawsuit filed on June 22, 2015, challenging the 15% rule for inclusion in presidential general election debates. This will be the first hearing the case has had. The plaintiffs include Gary Johnson and Jill Stein.

Independent presidential candidate Rocky De La Fuente, who is also the Reform Party nominee, has filed more constitutional ballot access lawsuits this year than any candidate or group except for the Libertarian Party. Most of his lawsuits are not resolved and will get decisions in 2017. In all the cases mentioned below, the court denied injunctive relief putting De La Fuente on the ballot, but declaratory judgment has not yet been settled. All of the cases below are pending in U.S. District Courts, except for one of his Georgia cases, which is in the State Supreme Court. Besides the three lawsuits over sore losers and presidential primaries mentioned in the October 1 B.A.N., the lawsuits include:

California: De La Fuente is challenging the requirement that independent presidential candidates this year need 178,039 signatures. No other candidate in California ever needs more than 65 signatures to be on the ballot for partisan office.

Georgia: De La Fuente is challenging the law that requires an independent presidential candidate to submit his or her candidates for presidential elector several weeks before the petition itself is due. He is also challenging the state’s procedures for checking signatures on petitions. That is in the State Supreme Court. The Secretary of State has no guidelines for checking validity, so each county has its own standards, and they vary widely. De La Fuente submitted 14,500 signatures this year; he needed 7,500. He was told that only 20% of his signatures are valid, even though they were collected by experienced professional circulators.

Oklahoma: De La Fuente is challenging the requirement that independent presidential candidates need 40,047 valid signatures. By contrast, new parties need 24,745.

Texas: De La Fuente is challenging the May 9 petition deadline for independent presidential candidate. But the judge has hinted that De La Fuente may not have standing to challenge the deadline, because he ran in the Texas Democratic presidential primary this year.

Virginia: De La Fuente is challenging the law that requires independent presidential elector candidates to file a declaration of candidacy form that includes the full social security number. This form is required before the petition may begin to circulate. De La Fuente could not start his petitioning until late in the season because it was difficult for him to recruit elector candidates who were willing to reveal their SS numbers.

Washington: De La Fuente is challenging the law that requires an independent candidate to give notice in a newspaper, ten days before the petition itself starts to circulate.

De La Fuente had also sued Illinois and North Carolina, but those lawsuits are no longer pending. They were dismissed because De La Fuente was acting as his own attorney in those cases, and he made procedural errors. He had also sued South Dakota over petitioning checking procedures.

His "sore loser" lawsuits in Alabama and Pennsylvania are still in U.S. District Court.

On September 29, California Governor Jerry Brown vetoed SB 1288. It would have allowed any city and county to use instant runoff voting for elections for its own officers. Current law only allows charter cities and counties to do that. Brown said instant runoff voting is too confusing.

On October 1, he vetoed SB 1094, which would have required that unpaid volunteers collect at least 5% of the needed signatures for statewide initiatives.

The lead story in the October 1 B.A.N. was about a U.S. District Court enjoining the West Virginia deadline for independent candidates to file a declaration of candidacy. Judge Robert Chambers had put the candidates on the ballot but had not yet explained his reasoning, except briefly.

On October 21, he issued a full opinion, saying a January deadline "prematurely cuts off such candidate’s opportunity to respond to later developments…the January deadline deprives these candidates from knowing the political climate of the major parties and what issues will come to the forefront during campaigns. It also seriously impairs their abilities to raise support, money, and recognition for their campaigns." The case is Daly v Tennant, s.d., 3:16cv-8981.

On October 27, the State Supreme Court ruled that a statewide initiative for medical marijuana should not have been put on the ballot, because some of the signatures had been gathered by individuals who listed their post office box addresses instead of their residence addresses on some sheets. Also, some of the signatures had been collected by paid circulators whose employer had not given them state booklets on instructions for petitioners.

Finally, some signatures were invalidated because the employer had not done a police records search for some of the circulators, or had put down the wrong date for when the police search had been done. The vote was 5-2. Benca v Martin, cv16-785.

Everyone agreed that the initiative had enough signatures of registered voters. The initiative is on the ballot, but if it gets more "yes" votes than "no" votes, it still won’t take effect. Early voting had already begun when the court decision came down.

Arkansas: on September 29, the state filed a notice of appeal in Libertarian Party of Arkansas v Martin. The U.S. District Court had struck down the law requiring newly-qualifying parties to choose all their nominees (except President) an entire year before the election.

Connecticut: on September 28, a state trial court put State House candidate David Yaccarino on the ballot, even though he had forgotten to sign his declaration of candidacy. He is an incumbent Republican legislator running for re-election.

Michigan: on October 24, a U.S. District Court Judge enjoined a law that makes it illegal for anyone except professionals to take a photograph in a polling place. But on October 28, the Sixth Circuit stayed that decision, by a vote of 2-1. Crookston v Johnson.

New Mexico: on October 24, the State Supreme Court heard Crum v Duran, SISC 36030. The voter-plaintiffs are independents and they argue they have a state constitutional right to vote in partisan primaries. The lower court had upheld the closed primary system.

Ohio: on October 26, the Libertarian Party asked the U.S. Supreme Court to hear its appeal against the 2013 ballot access law that is keeping the party off the ballot this year. Libertarian Party of Ohio v Husted.

Ohio(2): on October 21, the Libertarian Party filed its brief in the State Court of Appeals. It argues that the 2013 ballot access law violates the State Constitution, which is the only state constitution that requires that the state provide primaries to all recognized political parties. The 2013 law says that newly-qualifying parties do not have a primary.

Pennsylvania: on October 21, the state Republican Party filed a lawsuit against the residency requirement for poll watchers. They cannot work outside their home county. Republican Party of Pennsylvania v Cortes, e.d., 16cv-5524.

The Republican Party list of presidential elector candidates in California includes a federal official, Arun Bhumitra. He is a member of the Industry Trade Advisory Committee, which is part of the International Trade Administration within the Department of Commerce. He was confirmed by the U.S. Senate for this position.

Article II of the U.S. Constitution says no one who "holds an office of Trust or Profit under the United States shall be appointed an elector."

The California Republican Party did not submit any alternates when it sent in its elector list.

The chart below shows how many state legislative candidates each party is running in each state. It also shows the number of independent candidates. No candidate is counted twice. If a candidate is the nominee of two parties, he or she is credited to the party of membership.

As is usual, a large percentage of state legislative races have only one candidate on the ballot. Either the Democratic Party or the Republican Party failed to run anyone in 41% of the races.

Common Cause recently published a study about the extreme lack of competition for state legislative seats. The report singles out Arkansas, Georgia, Illinois, Massachusetts, New Mexico, South Carolina, Rhode Island, and Texas, for having the most legislative races without a Democrat-Republican race. Unfortunately the report blames gerrymandering for this problem, and doesn’t even mention restrictive ballot access laws.

This is the first election since 2008 in which the Democratic Party has more legislative nominees than the Republican Party.

~	# seats	Rep.	Dem.	Lib’t.	indp.	Green	Consti	other(1)	other(2)	oth(3)
Alas	50	39	37	0	11	0	4	1	0	0
Ariz	90	67	67	0	1	6	0	0	0	0
Ark	117	90	55	11	2	0	0	0	0	0
Cal	100	78	95	5	1	0	0	0	0	0
Colo	83	75	75	15	2	1	0	0	0	0
Ct	187	165	161	2	10	13	0	4	2	1
Del	52	32	44	2	0	4	0	1	0	0
Fla	160	123	110	2	14	0	0	0	0	0
Ga	236	171	110	0	1	0	0	0	0	0
Hi	65	35	63	10	1	2	1	0	0	0
Id	105	99	69	3	3	0	3	0	0	0
Ill	158	96	123	0	1	0	0	0	0	0
Ind	125	103	102	20	2	0	0	0	0	0
Iowa	125	102	106	18	7	0	0	0	0	0
Kan	165	142	133	7	1	0	0	0	0	0
Ky	119	101	86	1	0	0	0	0	0	0
Maine	186	168	176	0	12	1	0	0	0	0
Mass	200	67	179	1	12	2	0	2	1	0
Mich	111	111	111	25	0	9	7	0	0	0
Minn.	201	198	199	5	1	1	0	1	1	1
Mo	181	146	111	21	11	6	1	0	0	0
Mont	125	110	118	6	2	0	0	0	0	0
Nev	53	48	45	10	1	0	3	0	0	0
NH	424	369	392	1	3	0	0	0	0	0
NM	112	68	89	1	1	0	0	0	0	0
NY	213	150	189	3	2	17	0	24	3	3
NoC	170	134	126	12	0	0	0	0	0	0
NoD	75	69	64	0	1	0	0	0	0	0
Ohio	115	107	93	0	4	1	0	0	0	0
Okla	126	117	102	12	12	0	0	0	0	0
Ore	76	63	67	21	3	3	0	6	2	0
Pa	228	174	171	4	7	3	1	0	0	0
R I	113	39	108	3	29	0	0	0	0	0
So C	170	128	84	3	0	1	3	1	1	0
So D	105	94	88	0	7	0	0	0	0	0
Tenn	115	97	74	0	18	0	0	0	0	0
Tex	166	122	100	34	1	7	0	0	0	0
Utah	90	83	64	7	0	0	2	3	0	0
Vt	180	112	137	2	25	0	0	22	1	2
Wash	124	96	105	8	3	1	0	0	0	0
W Va	118	116	111	7	1	6	1	1	0	0
Wis	115	82	91	3	8	0	0	1	0	0
Wyo	75	69	60	0	4	0	2	0	0	0
TOTAL	5904	4655	4690	285	225	84	28	67	11	9

Parties in the "other(1)" column: Ak, Alaskan Independence; Ct & Del, Independent Pty; ; Mass, United Independent; Mn, Independence; NH, Restore the Center; NY, Conservative; Or, Independent Pty; SC, American; Ut, Independent American; Vt, Progressive; Wa; WV, Socialist Equality; Wi, Veterans.

Parties in the "other(2)" column are: Ct, Working Families; Mass, Pirate; Mn, Legal Marijuana Now; NY, Women’s Equality; Or, Progressive; SC Independence; Vt, Marijuana.

Parties in the "other(3)" column: NY, one each for Working Familes, Reform, Independence; Vt Liberty Union.

The chart below lists each presidential candidate who is on the ballot in at least three states, and tells where such candidates are on the ballot, and where they have write-in status. Write-in filing is shown as "w-in." In states that have write-in space on the ballot for president, but which have no procedure for a write-in candidate to file, the chart shows "(w-in)."

~	Castle	Fuente	McMull	LaRiva	Kennedy	Kotlikof	Mooreh	Soltysik	Hoefling	Hedges
Ala	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)
Alas	ON	ON	w-in	~	~	w-in	~	~	w-in	~
Ariz	w-in	w-in	w-in	~	~	w-in	~	~	w-in	~
Ark	ON	~	ON	~	~	~	~	~	~	ON
Cal	~	~	w-in	ON	~	w-in	~	~	~	~
Colo	ON	ON	ON	ON	ON	ON	~	ON	ON	ON
Ct	w-in	w-in	w-in	w-in	~	w-in	~	~	w-in	~
Del	w-in	~	w-in	w-in	~	~	~	~	w-in	~
D.C.	~	~	~	~	~	~	~	~		~
Fla	ON	ON	~	~	~	w-in	~	~	~	~
Ga	w-in	~	w-in	~	~	w-in	~	~	w-in	~
Hi	ON	~	~	~	~	~	~	~	~	~
Id	ON	ON	ON	~	~	w-in	w-in	~	w-in	w-in
Ill	w-in	~	w-in	~	~	w-in	~	~	w-in	~
Ind	w-in	w-in	~	~	~	w-in	w-in	w-in	w-in	~
Iowa	ON	ON	ON	ON	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)
Kan	w-in	w-in	w-in	~	~	~	~	~	w-in	~
Ky	w-in	ON	ON	~	~	w-in	~	~	w-in	~
La	ON	~	ON	ON	ON	ON	~	~	ON	~
Maine	w-in	~	w-in	~	~	w-in	~	~	~	~
Md	w-in	w-in	w-in	w-in	~	w-in	~	w-in	w-in	w-in
Mass	~	~	w-in	~	~	w-in	w-in	~	~	~
Mich	ON	~	w-in	~	~	w-in	w-in	ON	w-in	~
Minn	ON	ON	ON	~	ON	w-in	~	w-in	w-in	~
Miss	ON	ON	~	~	~	~	~	~	~	ON
Mo	ON	w-in	w-in	~	~	w-in	~	~	w-in	~
Mont	w-in	ON	w-in	~	~	w-in	w-in	w-in	w-in	~
Neb	w-in	w-in	w-in	~	~	~	~	~	w-in	~
Nev	ON	ON	~	~	~	~	~	~	~	~
N H	(w-in)	ON	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)
N Jer	ON	ON	(w-in)	ON	ON	(w-in)	ON	(w-in)	(w-in)	(w-in)
N Mex	ON	ON	ON	ON	~	~	~	~	~	~
N York	w-in	w-in	w-in	w-in	~	~	w-in	w-in	w-in	~
No C	~	~	~	~	~	~	~	~	~	~
No D	ON	ON	w-in	~	~	w-in	~	~	~	~
Ohio	w-in	~	w-in	~	~	w-in	w-in	~	w-in	~
Okla	~	~	~	~	~	~	~	~	~	~
Ore	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)
Penn	ON	w-in	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)
R I	(w-in)	ON	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)
So C	ON	~	ON	~	~	~	~	~	~	~
So D	ON	~	~	~	~	~	~	~	~	~
Tenn	w-in	ON	w-in	~	ON	w-in	~	~	w-in	~
Tex	w-in	~	w-in	~	~	w-in	w-in	w-in	w-in	~
Utah	OH	ON	ON	~	ON	w-in	ON	w-in	w-in	~
Vt	(w-in)	ON	(w-in)	ON	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)
Va	w-in	w-in	ON	~	~	w-in	~	~	w-in	~
Wash	ON	w-in	w-in	ON	ON	w-in	w-in	~	w-in	~
W Va	ON	w-in	w-in	w-in	~	w-in	w-in	~	w-in	w-in
Wis	ON	ON	w-in	~	~	w-in	ON	w-in	w-in	~
Wyo	ON	ON	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)	(w-in)

Above are all presidential candidates who are on in at least three states, except for Trump, Clinton, Johnson, and Stein. All of them are on all ballots, except that Stein is not on in Georgia, Indiana, Nevada, North Carolina, Oklahoma, and South Dakota. She has write-in status in Georgia, Indiana, and North Carolina.

For space reasons, the chart omits the three presidential candidates who are on the ballot in all jurisdictions, and also omits Jill Stein, because Stein is on the ballot in all but six states, and her details are in the note underneath the chart.

The chart also had room to include some presidential candidates who are on the ballot in only two states. But there wasn’t room for all of those candidates. The other candidates who are on in at least two states are:

Lynn Kahn: on in Arkansas and Iowa, and filed for write-in status in Delaware, Idaho, Maryland, Montana, Nebraska, New York, Washington, and West Virginia.

Chris Keniston: on in Colorado and Louisiana, and filed for write-in status in Alaska, Idaho, Kentucky, Nebraska, New York, Ohio, Virginia, Washington, and Wisconsin.

Mike Smith: on in Colorado and Tennessee, and filed for write-ins in Alaska, Arizona, Connecticut, Delaware, Georgia, Idaho, Kansas, Kentucky, Maryland, Minnesota, Montana, Ohio, Utah, Virginia, Washington, and West Virginia.

Dan Vacek: on in Iowa and Minnesota. He did not file for write-in status anywhere.

Thirteen candidates are on in a single state: Frank Atwood, Scott Copeland, Richard Duncan, Rocky Giordani, Princess Jacob, Kyle Kopitke, Bradford Lyttle, Joseph Maldonado, Michael Maturen, Ryan Scott, Rod Silva, Peter Skewes, and Jerry White.

On October 6, independent presidential candidate Evan McMullin chose Mindy Finn to be his vice-presidential running mate. If McMullin carries Utah (which polls say is possible), his electors will vote for Finn for vice-president, even though Nathan Johnson is listed on the ballot for vice-president in Utah and in all states in which McMullin is on the ballot. Both McMullin and Finn live in Washington, D.C. If the McMullin-Finn ticket won in the District of Columbia, one of them would move out of the city before the electoral college meets on December 19. The Twelfth Amendment does not permit electors to vote for someone from the same jurisdiction as that elector for both president and vice-president.

The New York Reform Party, which is ballot-qualified, has an internal dispute over its state officers which is pending in state court. For president, one faction wanted to nominate Donald Trump but the other faction wanted no nominee, so the State Board of Elections did not certify any presidential nominee.

The party’s nominee for U.S. House in New York’s 22^nd district, Martin Babinec, has been endorsed by the U.S. Chamber of Commerce. This is the first time the national Chamber has ever endorsed a congressional candidate who is not a major party nominee. He has spent over $1,000,000 in his campaign. A poll taken at the end of September showed him at 24%. His Republican opponent, Claudia Tenney, had 35%; the Democrat, Kim Myers, had 30%; undecided 11%.

Rocky De La Fuente’s party, the American Delta Party, has qualified for the Delaware ballot, but not in time to be on this year. It is qualified for 2018.