GEORGIA LIBERTARIANS FILE LAWSUIT AGAINST NATION’S MOST RESTRICTIVE BALLOT ACCESS PETITION

On November 21, the Georgia Libertarian Party filed a lawsuit in federal court against the nation’s most restrictive petition requirement for minor parties or independent candidates. Cowen v Kemp, n.d., 1:17cv-4660, challenges the petition requirement for U.S. House, for minor party and independent candidates. The existing law has existed since 1964 and has never been successfully used. As a result, ever since the existing law has been in place, Georgia voters have never seen anyone on their regular ballot for U.S. House, except for Republican and Democratic nominees. There was an independent on in one district in 1982, but the normal law did not apply to him that year because of late redistricting. The case is assigned to U.S. District Court Judge Leigh Martin May, an Obama appointee.

The Libertarian Party has been placing nominees for U.S. House on the ballot ever since it was formed in 1972. During the party’s lifetime it has had 2,564 nominees for U.S. House on ballots across the country, in regular elections. They have run in every state except Georgia.

The existing law requires a petition of 5% of the number of registered voters, which in 2018 is approximately 20,000 signatures in the typical Georgia district. Petitioning for district office is significantly more difficult than petitioning for statewide office. Every potential signer knows what state he or she lives in, but a majority of persons do not know what U.S. House district they live in. The boundaries of U.S. House districts in Georgia and many other states are very complex. Thus, even the best petitioner invariably collects many invalid signatures, from persons who are registered but who don’t live in the right district.

No other state requires either minor party or independent candidates for U.S. House to collect more than 10,000 valid signatures, except for Illinois, where in 2018 the requirement in the average district is 14,500 signatures (5% of the last vote cast). The severe Illinois policy is somewhat ameliorated by the fact that (1) an Illinois petition that doesn’t have enough valid signatures still puts the candidate on the ballot if no one challenges the petition; (2) in years after a census (i.e., years that end in the digit "2"), the requirement is exactly 5,000 signatures.

There have been lawsuits challenging the requirement for U.S. House before, and they have not won. However, this lawsuit has a better chance. Starting last year, the presidential independent/minor party petition in Georgia has been 7,500 signatures (before 2016 it was about 50,000). The Supreme Court has twice ruled that states cannot require more signatures for district office than for statewide office. That should mean that Georgia can’t require more than 7,500 for U.S. House.

Furthermore, the Georgia Libertarian Party has shown that it has substantial voter support, for statewide office, especially in the last few elections. At least one statewide Libertarian nominee in Georgia has polled over 30% of the vote in a partisan race in 2016, 2014, 2012, and 2008. For instance, in 2016, Libertarian nominee Eric Hoskins received 1,200,076 votes (33.4%) for Public Service Commissioner, in a 2-way race with a Republican opponent.

The last lawsuit challenging the Georgia 5% petition for U.S. House was filed in 2008 by an independent, Faye Coffield.

She lost on a technicality: the Eleventh Circuit acknowledged that the U.S. Supreme Court has said that ballot access laws should be judged by according to how often they are used, but the Eleventh Circuit said she hadn’t showed that anyone in Georgia had ever tried to surmount the 5% petition. This time, the lawsuit will contain evidence listing at least twenty-seven instances where someone tried and failed to obtain the signatures.

The lawsuit will also present evidence that Georgia petition-checking procedures are faulty, and that different county election officials use different standards for determining whether a signature is valid or not.

Georgia will defend its law by saying that the U.S. Supreme Court upheld the 5% in 1971 in Jenness v Fortson. However, that decision depended on the fact that two statewide 5% petitions had succeeded in each of the two election years before the case was filed. Neither the 1966 nor the 1968 successes involved district petitions, however; they were the Republican gubernatorial petition in 1966 and George Wallace’s presidential petition in 1968.

The Court Has Never Approved a Democratic-Republican Monopoly

Relevant quotations from the Court, starting in 1957, have been:

Sweezy v New Hampshire, 354 US 234 (1957), said, "All political ideas cannot and should not be channeled into the programs of our two major parties. History has amply proved the virtue of political activity by minority, dissident groups, who innumerable times have been in the vanguard of democratic thought and whose programs were ultimately accepted."

Reynolds v Sims, 377 US 533 (1964), said, "The right to vote freely for the candidate of one’s choice is the essence of a democratic society, and any restrictions on that right strike at the heart of representative government."

Williams v Rhodes, 393 US 23 (1968), said, "The right to form a party for the advancement of political goals means little if a party can be kept off the election ballot and thus denied an equal opportunity to win votes. So also, the right to vote is heavily burdened if that vote may be cast only for one of two parties at a time when other parties are clamoring for a place on the ballot."

Moore v Ogilvie, 394 US 814 (1969): "All procedures used by a State as an integral part of the election process must pass muster against the charges of discrimination or of abridgement of the right to vote."

Jenness v Fortson, 403 US 431 (1971): "The open quality of the Georgia system is far from merely theoretical. For the stipulation of facts in this record informs us that a candidate for Governor in 1966, and a candidate for President in 1968, gained ballot designation by nominating petitions."

Bullock v Carter, 405 US 134 (1972): "The rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters."

Lubin v Panish, 415 US 709 (1974): "It is to be expected that a voter hopes to find on the ballot a candidate who comes near to reflecting his policy preferences on contemporary issues."

American Party of Texas v White, 415 US 767 (1974): What is demanded may not be so excessive or impractical as to be in reality a mere device to always, or almost always, exclude parties with significant support from the ballot."

Storer v Brown, 415 US 724 (1974): "Could a reasonably diligent independent candidate be expected to satisfy the signature requirements, or will it be only rarely that the unaffiliated candidate will succeed in getting on the ballot? Past experience will be a helpful, if not always an unerring, guide; it will be one thing if independent candidates have qualified with some regularity and quite a different matter if they have not…The State must provide a feasible opportunity for new political organizations to appear on the ballot."

Mandel v Bradley, 432 US 173 (1977): "The appropriate inquiry was set out in Storer v Brown, supra, at 742 (the decision then quotes the same two sentences quoted above in the Storer paragraph, showing that the Court really meant what it said in those sentences).

Illinois State Bd. of Elections v Socialist Workers Party, 440 US 173: "By limiting the choices available to voters, the State impairs the voters’ ability to express their political preferences."

Anderson v Celebrezze, 460 US 780 (1983): "A burden that falls unequally on new or small political parties or on independent candidates impinges, by its very nature, on associational choices protected by the First Amendment. It discriminates against those candidates and – of particular importance – against thse voters whose political preferences lie outside the existing political parties."

Munro v Socialist Workers Party, 479 US 189 (1986): "Restrictions upon the access of political parties to the ballot impinge upon the rights of individuals to associate for political purposes, as well as the rights of qualified voters to cast their votes effectively."

Burdick v Takushi, 504 US 428 (1992): "When these rights (ballot access) are subjected to ‘severe’ restrictions, the regulation must be ‘narrowly drawn’ to advance a state interest of compelling importance.’"

Norman v Reed, 502 US 279 (1992): "For more than two decades, this Court has recognized the constitutional right of citizens to create and develop new political parties. The right derives from the First and Fourteenth Amendments and advances the constitutional interest of like-minded voters to gather in pursuit of common political ends, thus enlarging the opportunities of all voters to express their own political preferences."

Timmons v Twin Cities Area New Party, 520 US 351 (1997): "States also have a strong interest in the stability of their political systems. This interest does not permit a State to completely insulate the two-party system from minor parties’ or independent candidates’ competition and influence."

The above list includes every case in which the U.S. Supreme Court has expressed itself about minor party and independent candidate ballot access. Some of the decisions above struck down ballot access laws; some of the decisions upheld such laws. But there is no instance at which the Court ever said that a state may completely bar all minor party and independent candidates from the ballot.

As reported in the last B.A.N., on October 23 the Maine legislature virtually repealed the ranked-choice voting law the voters had passed last year. On November 7, supporters of ranked-choice voting began circulating a referendum petition to cancel the legislature’s act. On the first day, approximately 33,000 signatures were collected, by volunteers who stood near polling places for Maine’s local elections. It is likely that the petition, which needs 61,123 signatures by February 4, will succeed. If that happens, the state will be required to use ranked-choice voting in the June 2018 primary for all federal and state office.

On November 17, the Ninth Circuit upheld the action of the California Secretary of State, who refused to check registration records to see how many voters are members of the Independent Party. Independent Party v Padilla, 16-15895. In California, a party gets on the ballot by persuading approximately 60,000 persons to register as a member. No one knows how many people have registered in the Independent Party, but it probably has enough to be a qualified party. Last year the Los Angeles Registrar of Voters checked and found 25,000 such voters. The Secretary of State said "Independent Party" is too similar to "American Independent Party."

The unsigned decision is four pages. The oral argument should have been in San Francisco on November 13, but a few days before the hearing, the judges cancelled the hearing.

The three judges were Ronald Gould and Mary Murguia, Clinton appointees; and James Gritzner, a Bush Jr. appointee visiting from Iowa.

It is likely none of the judges read the evidence in the case, because they implied that anyone who forms a party named the "Independent Party" is guilty of fraud. If the judges had known the history of other ballot-qualified Independent Parties they would not have said this.

The evidence explained the circumstances in which parties named "Independent Party" got on the ballot in recent decades in Arkansas, Connecticut, Delaware, Florida, Hawaii, Louisiana, Maryland, New Mexico, North Carolina, Oregon, South Carolina, Utah, and Vermont. Ross Perot, John Anderson, Ralph Nader, Mufi Hannemann, and Merrill Cook are among political leaders who formed parties named "Independent Party" and got them on the ballot. Hannemann is a former Mayor of Honolulu, and Cook is a former member of Congress from Utah.

It is also likely that the judges in the Independent Party case were unaware of the structure of the California registration form. It asks voters if they wish to enroll in a party. There is a "Yes" checkbox and a "No" checkbox. If the voter checks "No", he or she is directed to skip the next section. If a voter checks "Yes", then there is a list of the qualified parties, each with its own checkbox. There is also a blank line, also with its own checkbox. Persons who register as members of the Independent Party clearly do want to be a member of a party named the Independent Party. The voter registration forms themselves are evidence of their intent. The state presented no evidence to disagree.

If the court had not cancelled the hearing, the attorneys were prepared to show the judges the form.

The opinion fails to mention any precedent on whether a party has a First Amendment right to choose its name. Although most states have a law forbidding two parties from having names that are so similar as to confuse the voters, generally states have not interpreted these laws to mean that two parties can’t both use a common word. In 44 states, at one time or another, there have been two parties on the ballot, both of which shared a common word. For example, the Socialist Party and the Socialist Labor Party (and later the Socialist Workers Party) were all on the ballot in many states.

The California Supreme Court ruled in 1896 that both the Democratic Party and the National Democratic Party could be on the ballot. The Fifth Circuit in 1975 ruled that Mississippi must let both the Democratic Party and the National Democratic Party on. The Oregon State Court of Appeals ruled in 2002 that Oregon must let both the Socialist Party and the Freedom Socialist Party on. A federal court in Pennsylvania ruled in 1970 that the state must let both the Socialist Labor Party and the Socialist Workers Party on.

The opinion does not mention the U.S. Supreme Court opinion Norman v Reed, which ruled that Illinois must permit the Harold Washington Party on the ballot for Cook County office, even though the state said that name was not permitted because there was already a ballot-qualified party by the same name on the ballot in Chicago. The U.S. Supreme Court applied strict scrutiny for that part of its decision.

State laws, forbidding two parties from having overly similar names, have generally just been applied to instances when the names of the two parties were virtually identical. For instance, in 1970 New York state courts kept the Conservation Party off the ballot, on the grounds that "Conservation" and "Conservative" look too much alike.

The Ninth Circuit said that the California law, preventing two parties from having similar names, justifies the decision of the Secretary of State’s ruling against the Independent Party. The Ninth Circuit did not mention that both the Socialist Party and the Socialist Labor Party were on the ballot in California in 1912, nor did it mention that the California Secretary of State permitted Americans Elect Party to get on the ballot in 2011, even though the American Independent Party was already on the ballot.

On November 13, the U.S. Supreme Court agreed to hear Minnesota Voters Alliance v Mansky, 16-1435. The case challenges a Minnesota law that forbids anyone in a polling place from wearing any clothing, or anything attached to clothing, that expresses any viewpoint about anything political. The lower courts had upheld the law. Many states forbid anything relating to a party or an issue on the ballot, but the Minnesota law goes further.

It is fairly likely that in November 2018, Florida voters will vote on whether to amend the State Constitution to provide that independent voters may choose any primary ballot they wish. Arizona and Colorado have similar laws.

The Florida Constitutional Revision Commission has the power to put proposed amendments on the ballot, with no petition needed. The Commission will consider whether to put this idea on the ballot in early 2018. Commissioner Bill Schifino is backing the idea. The Commission only comes into existence every twenty years. In 1998, the last time the Commission existed, it put ballot access reform on the ballot, and it passed with 65% of the vote. The 1998 change eliminated mandatory petitions for minor party and independent candidates for congress and state and local partisan office.

On October 16, the Seventh Circuit upheld Illinois ballot access procedures as applied to minor party and independent candidates for the legislature. Tripp v Scholz, 16-3469. This was a Green Party case. The typical legislature district requires approximately 3,000 signatures for petitions for the November ballot. The decision also upholds the law requiring that each petition sheet be notarized.

The last time B.A.N. carried a petitioning chart for 2018, showing the progress of parties getting on the ballot, was the July 1, 2017 issue. Since then, the Libertarian Party has qualified in Arkansas, and has 71,000 signatures in Ohio (which requires 54,965). The Green Party has qualified in Utah and is almost halfway done in Montana.

New York: a U.S. District Court will hold a trial in Merced v Spano, e.d., 1:16cv-3054, on December 13. The issue is the state’s ban on out-of-state circulators for general election petitions. The Libertarian Party had filed this lawsuit.

New Jersey: the Third Circuit will hear Wilmuth v Guadagno, 17-1925, on January 23, 2018. The issue is the ban on out-of-state circulators for primary petitions. The plaintiff lives in Michigan, but he wanted to circulate presidential primary petitions in 2016 for a Democrat. The U.S. District Court upheld the ban earlier this year, stating that the Democratic Party doesn’t want out-of-state circulators working on Democratic primary candidate petitions, and that the Democratic Party has a freedom of association right to ban out-of-staters. However the Democratic Party has no bylaws on the subject and has not intervened in the case. Pennsylvania has a similar restriction, and because both states are in the Third Circuit, this appeal will affect the law in both states.

California: the petition to repeal the California top-two system, and to return to a semi-closed system, is now circulating. To obtain petition blanks, send an e-mail to: info@stoptop2.com; or go to stoptop2.com to see contact information for your county. Or write to PO Box 2413, Rancho Cucamonga Ca 91729. The petition is due April 23, 2018.

South Dakota: the petition to institute a top-two system has been submitted, and election officials are checking to see if it has enough valid signatures. If it does, it will be on the ballot in November 2018. The proposal is peculiar, because it applies to Governor, but not to any of the other statewide state constitutional offices. Parties would continue to have nominees for the lesser statewide offices.

On October 15, California Governor Jerry Brown signed AB 837, which requires election officials to fully inform independent voters that they may vote in the presidential primaries of certain political parties. The Democratic, Libertarian, and American Independent Parties let independents vote in their 2016 presidential primaries, but many independent voters did not know this. The law requires election officials to inform all mail-ballot independent voters by postal mail. At polling places, posters will explain the choices. The same information will be in the Voter Guide that is mailed to all voters, and it will be on the Secretary of State’s web page. If the top-two system is repealed, and parties once again have their own primary ballot for Congress and state office, the same rules will apply to those primary ballots.

On November 22, the Oregon Democratic Party voted to continue the policy that does not let independent voters vote in Democratic primaries. The Republican Party has a similar rule. But the Independent Party, which also has a primary, lets independents vote in its primary.

The chart below shows the last time someone who was neither a Democratic nor Republican nominee was elected to a state legislature. In the case of Nebraska, which has a non-partisan legislature but in which voters do have partisan affiliation, the chart shows the last time someone was elected who was not registered as a Democrat or Republican.

Arizona and Hawaii are the only states in which only Democratic or Republican nominees have ever been elected to the legislature.

State	Winner	Chamber	Year	Label	Dist. or Place
Alabama	Harri Ann Smith	Senate	2014	independent	29, Geneva Co.
Alaska	Jason Grenn	House	2016	independent	22, Anchorage
Arizona	– – –	– –	– –	– – –	– – –
Arkansas	Fred Smith	House	2012	Green	50, Crittenden Co.
California	Audie Bock	Assembly	1999	Green	16, Alameda Co.
Colorado	Charles T. Philip	Senate	1900	Peoples	Arapahoe & Weld Cos.
Connecticut	Joshua Hall	House	2017	Working Families	7, Hartford
Delaware	Robert A. Cochran	House	1856	American	New Castle Co.
Florida	Lori Wilson	Senate	1974	independent	16, Brevard Co.
Georgia	Rusty Kidd	House	2012	independent	145, Baldwin Co.
Hawaii	– – –	– –	– –	– – –	– – –
Idaho	George G. Barrett	Senate	1926	Progressive	Gooding Co.
Illinois	James Meeks	Senate	2002	Honesty & Integrity	15, Chicago
Indiana	Walter McConaha	Senate	1914	Progressive	Union & Wayne Cos.
Iowa	Byron G. Allen	House	1926	independent	77, Pocahontas Co.
Kansas	Ellen Samuelson	House	1994	write-in	74, Harvey Co.
Kentucky	Bob Leeper	Senate	2010	independent	2, McCracken Co.
Louisiana	Terry Brown	House	2015	independent	22, Grant Parish
Maine	Owen Casas	House	2016	independent	94, Rockport
Maryland	Joseph A. Cantrel	House	1934	Fusion	Chevy Chase, Md
Mass.	Timothy Madden	House	2008	independent	Nantucket & Martha’s
Michigan	Charles T. Winegar	Senate	1912	Progressive	Upper peninsula
Minnesota	Sheila Kiscaden	Senate	2002	Independence	30, Olmsted Co.
Mississippi	Tom Cameron	House	1999	independent	52, Washington Co.
Missouri	Tracy McCreery	House	2011	independent	83, St. Louis Co.
Montana	Rick Jore	House	2006	Constitution	12, Lake Co.
Nebraska	Ernie Chambers	Senate	2016	independent	11, Omaha
Nevada	Glen C. Norstrom	Assembly	1946	independent	Mineral Co.
New Hamp.	David Luneau	House	2014	independent	10, Merrimack Co.
New Jersey	Anthony M. Imperiale	Senate	1973	For the People	30, Essex-Hudson Cos.
New Mexico	W. C. Tharp	House	1914	Socialist	Curry Co.
New York	Dianne Richardson	Assembly	2015	Working Families	43, Brooklyn
No. Carolina	Bert Jones	House	2010	independent	65, Rockingham Co.
No. Dakota	Herb Geving	Senate	1966	independent	4, Mountrail, Ward Cos.
Ohio	Thomas A. Christy	House	1950	independent	Monroe Co.
Oklahoma	George E. Wilson	Senate	1914	Socialist	Delaware-Rogers Cos.
Oregon	Bob Jenson	House	1998	independent	57, Union Co.
Pennsy.	Emilio Vazquez	House	2017	write-in	197, Philadelphia
Rhode Is.	Blake Filippi	House	2016	independent	36, Charlestown
So. Carolina	Katrina Shealy	Senate	2012	independent	23, Lexington Co.
So. Dakota	Jenna Haggar	House	2010	independent	15, Minnehaha Co.
Tennessee	Kent Williams	House	2012	independent	4, Washington Co.
Texas	Laura Thompson	House	Aug. 2016	independent	120, San Antonio
Utah	Clarence J. Albrecht	House	1956	independent	22, Wayne Co.
Vermont	Alyson Eastland	House	2016	independent	Addison-Rutland Cos.
Virginia	Joseph Morrissey	House	Jan. 2015	independent	74, Henrico Co.
Washington	John Robert Oman	Senate	1922	Farmer-Labor	29, Pierce Co.
West Va.	Elisha Bias	House	1906	Prohibition	Lincoln Co.
Wisconsin	Bob Ziegelbauer	Assembly	2010	independent	25, Manitowoc Co.
Wyoming	Mel ZumBrunnen	House	1982	Independent	Niobrara Co.

On November 22, Maine State Representative Henry John Bear changed his registration from "Democrat" to "Green". He is one of Maine’s three tribal representatives to the State House. Tribal representatives are chosen by one of the recognized tribes, and may participate in committees, and introduce bills, but cannot vote on the floor. Bear is the representative from the Maliseets. The other two represent the Passamaquoddy and the Penobscot. Maine is the only state that has tribal representatives to its state legislature. The other Green is Ralph Chapman.

New Jersey and Virginia held gubernatorial elections on November 7, 2017. In both states, minor party nominees did worse than normal, probably because the nation has become so polarized between pro- and anti-Trump voters, and these two gubernatorial elections became proxies for public opinion about the President.

New Jersey unofficial results: Democratic 55.60%; Republican 42.29%; Libertarian .49%; Green .47%; Constitution .35%. There were also two independents in the race. Gina Genovese, whose ballot label was "Reduce Property Taxes" received .57%; Vincent Ross, whose label was, "We the People", received .23%.

In past gubernatorial elections in New Jersey, the Libertarian Party had polled a higher percentage in 1989, 1997, 2005, and 2013. The Green Party had polled a higher percentage in 2005. The Constitution Party had never before run for Governor of New Jersey.

Virginia official results: Democratic 53.90%; Republican 44.97%; Libertarian 1.07%. In 2013, the Libertarian Party had polled 6.55% for Governor.

PARTY	2017	2013
Democratic	62.11%	68.31%
Republican	23.98%	21.43%
Working Families	4.05%	3.87%
Conservative	3.22%	2.26%
Reform	2.09%	.03%
Independence	no nominee	.79%
Green	1.44%	.45%
Libertarian	.24%	.16%
Socialist Workers	not on ballot	.07%

On November 7, Utah held a special congressional election, 3^rd district: Rep. 58.03%; Dem. 25.57%; United Utah 9.30%; Libertarian 2.47%; Independent American 1.55%; an independent candidate, Sean Whalen, 3.08%.

The United Utah’s showing for its nominee, Jim Bennett, was the best for a third party in a Utah U.S. House race (excluding races with only one major party candidate) since 1994, when the Independent Party nominee, Merrill Cook, polled 18.31%.

On November 7, the Green Party won ten partisan elections for local office: eight in Connecticut and two in Pennsylvania. The Libertarian Party won eight partisan elections, all in Pennsylvania. The Independence Party nominee for Mayor of Syracuse, New York, won the election, defeating his major party opponents.