MAINE VOTERS AGAIN PASS RANKED CHOICE VOTING

On June 12, Maine voters passed Question One by a margin of 53.9% to 46.1%. It is now likely that the legislature will clear away obstacles for using Ranked Choice Voting for all federal and state office, in primaries as well as general elections. RCV is already in effect for primaries for all state office and congress, and for congress in general elections.

The road to getting RCV in any state, for federal or state office, has been long. In January 2000, a Vermont state commission endorsed RCV, and it was thought that the legislature would pass the idea that year. But, the legislature did not, and all the Vermont bills since then to use RCV have failed.

On August 27, 2002, Alaska voters defeated an initiative for RCV by a margin of 36.1%-63.9%. That was the first and last time any state had held a popular vote on the issue, until November 2016, when Maine voters passed Question Five, to implement the system, by 52.1% to 47.9%. It carried seven of Maine’s sixteen counties, doing far better in cities than in rural areas.

But, on May 23, 2017, the Maine Supreme Judicial Court ruled that the state constitution, which says that state officials are to be elected by plurality vote, did not permit ranked choice voting for general elections for state office. Opinion of the Justices, OJ-17-1.

A bill was submitted in the regular session of the 2017 legislature to suspend all use of ranked choice voting for five years, and if at the end of five years, the Constitution had not been amended to delete the plurality requirement, the ranked choice initiative would be considered totally repealed. The bill failed to pass the regular session, but in a special session in October 2017, LD 1646 passed.

In response, ranked choice voters organized a second petition drive. Like the first one, it needed 61,123 valid signatures. Supporters of ranked choice successfully gathered the needed signatures in 88 days, and submitted them in February 2018. This was a referendum petition, to cancel the legislature’s 2017 bill. That meant that the challenged law was suspended, until after the voters voted on it. Therefore, the initiative was still partly in effect, and Maine law still required use of ranked choice for all primaries for partisan state office. That primary was held on June 12, 2018.

At the primary last month, voters voted to cancel the hostile 2017 bill by a margin of 54% to 46%, a larger martin in support of ranked choice voting than in 2016. This time, ranked choice voting got a majority in eight counties, instead of only seven in 2016.

The increase in support for RCV was especially noteworthy, because in November 2016 college students in Maine were generally available to vote, but in June 2018 many of them were away. Generally students favor ranked choice voting more than the general electorate does.

Why RCV Helps the Fight for Fairer Ballot Access Laws

The existence of ranked choice voting is very helpful in the struggle for more lenient ballot access laws.

The ballot access fight is making headway, but there are still many onerous laws. Georgia still has a ballot access law that has kept all minor party and independent candidates from qualifying for U.S. House since 1964. Alabama’s law is so severe that no statewide minor party has appeared on the ballot since 2002.

Illinois still has a ballot access law that has kept all independent candidates for U.S. House off the ballot since 2012. Indiana has not had any successful statewide independent or minor party petitions since 2000. New Jersey has not had any ballot-qualified parties, other than the Democratic and Republican Parties, since 1920. New Mexico has never had an independent candidate on the ballot for either Governor or U.S. Senator. Tennessee’s petition for a new party to get on the ballot has not been used successfully since 1968. And the top-two laws in California and Washington have kept all minor party candidates for statewide office off the ballot, ever since the laws were passed. Texas has not had a statewide independent on the ballot since 2006.

The chief impediment to persuading courts and legislatures to ease the ballot access laws is the fear of judges and legislators that if the ballot access laws are eased, the increased presence of minor party or independent candidates will "spoil" more elections. The U.S. Supreme Court used this argument in Jenness v Fortson in 1971, as a reason to uphold Georgia’s petition requirements for minor parties and independents, laws that were so severe that only one minor party or independent statewide candidate had ever qualified.

Progress in persuading state legislatures and judges to lower the number of signatures came to a complete stop after the November 2000 election, in which Ralph Nader’s vote in Florida was widely credited with causing the election of George W. Bush instead of Al Gore. No state eased the number of signatures in either 2001 or 2002. That was unusual, because much progress had been made during 1998 and 1999.

As the years have passed since the 2000 election, the ballot access movement has again been making gains. The number of signatures to get on the general election ballot was lowered during 2013-2014 in New Mexico and West Virginia. During 2015-2016, the numbers were reduced in California, Georgia, Oklahoma, and Pennsylvania. During 2017-2018 so far, they have been reduced in Maryland, Nebraska, North Carolina, Oklahoma again, and South Dakota.

But the two major parties are still hostile to minor parties and independent candidates. In 2018, they have brought challenges to eliminate minor party and independent candidates in Arizona, Maine, Montana, Nebraska, North Carolina, and Texas. Such opposition would be much reduced if RCV were in place in those states.

On June 14, U.S. District Court Judge John Gerrard, an Obama appointee, ruled that Nebraska’s petition requirement for non-presidential independent candidates is too severe. Bernbeck v Gale, 4:18cv-3073.

The law, passed in 2016, sets the non-presidential independent candidate petition at 10% of the number of registered voters. The registration tally changes constantly, as more people register to vote every day. Most states that set a petition requirement as a percentage of the number of registered voters at least set some particular date for the tally to be used, but the Nebraska bill was drafted so carelessly, it didn’t even do that.

Thus, the number of signatures couldn’t even be known until the date the candidate submitted the petition. Probably the statewide requirement would have been about 130,000 signatures if the petition had been submitted on the deadline, September 1 of an election year.

The bill had passed unanimously. The provision was inside a very lengthy omnibus election law bill.

If anyone did submit such a petition on the deadline, it is unlikely that the state would have been able to check the signatures before ballots must be printed. Federal law requires ballots to be mailed to overseas voters by mid-September.

The case had been filed by an independent candidate for State Treasuerer, Kent Bernbeck.

The old law, before 2016, had only required 4,000 signatures. The court order reinstates the old requirement, and Bernbeck expects to qualify. If he does, he will be the only opponent of the Republican nominee, who is State Senator John Murante, the sponsor of the 10% petition bill.

The state did not contest the lawsuit, and agreed that the Judge should declare the law unconstitutional. This is because all precedents agree that states can’t require independent candidates to ever submit more signatures than 5% of the number of registered voters.

The Independent Voter Project, which has promoted California’s top-two system and helped defend it in court, now favors changing it to "top-four". "Top-four" means that the top four vote-getters in June would advance to the November election. To solve the problem that this would frequently involve a general election with three Democrats and one Republican on the November ballot, or vice versa, IVP would use ranked choice voting in November.

IVP made this announcement on June 13, in a statement posted on the Independent Voters Network. Also, former State Senator Steve Peace, co-chair of the IVP, stated this orally on June 7, on a webinar sponsored by Ballotpedia.

Peace also says that IVP wants to restore write-in space to general election ballots.

On June 11, the U.S. Supreme Court issued a unanimous opinion in Gill v Whitford, 16-1161, the long-awaited decision on partisan gerrymandering. The Court said none of the plaintiffs have yet showed that they have standing, but it sent the case back to the 3-judge U.S. District Court so they could establish standing. The plaintiffs feel confident they will be able to do this, quickly.

The case is from Wisconsin, and concerns the districting process for the lower house of the legislature, which everyone agrees was a partisan Republican gerrymander. This case had been filed in 2015, and the lower court had struck down the plan.

The decision, by Chief Justice John Roberts, says that voting is "individual and personal in nature." This might seem obvious, but some theorists have argued that voting is a collective right, and if the collective theory were to take hold in courts, that would make it more difficult for an individual voter to file lawsuits on such topics as failure of election officials to count write-in votes.

Because voting is an individual right, the Gill decision says this case should be re-done to focus on voter plaintiffs whose own personal ability to select a legislator of his or her party has been harmed by the gerrymander. In the earlier part of the case, the voter-plaintiffs had focused on the statewide results, which was not the right approach.

The four Justices considered to be liberals wrote a concurrence, saying that another harm of partisan gerrymandering is the harm done to one particular major party, and that the Freedom of Association clause in the First Amendment protects the major party that is the victim of gerrymandering. The concurring judges agreed that the plaintiffs in this case had not designed their case to use that theory, but that in future cases that theory should be expanded.

Briefs are currently being filed in the Ninth Circuit in De La Fuente v Padilla, the case over the number of signatures needed for an independent presidential candidate to get on the ballot in California. Lawsuits like this customarily compare the laws of the state being challenged with the laws in the other states.

The California requirement is 1% of the number of registered voters as of the preceding general election. Only two states have a higher requirement than that, New Mexico and Wyoming. Then there are four other states that are virtually tied at approximately 1% of the registered voters, like California. They are Arizona, Delaware, Florida, and North Carolina. See the chart onpage five, which shows each state’s registration total as of November 2016, and each state’s requirement in 2016 (except that if a state has changed its requirement since 2016, the new law is shown as though it had existed in 2016).

On June 13, attorneys for the Secretary of State misinformed the Ninth Circuit about the laws for independent presidential candidates. The brief at footnote 13 says, "It is noteworthy that California’s 1-percent requirement for gathering supportive signatures falls in the middle of the range of, or is less than, what other U.S. states require. Many of them have signature-gathering requirements that are, proportionately, much higher than 1 percent of the number of eligible voters at the last general election. (National Association of Secretaries of State, Summary: State Law Regarding Presidential Ballot Access for the General Election (Feb. 2016)("NASS Summary"; SEOR at 144,147 (summarizing Montans’s 5-percent requirement; New Mexico’s 3-percent requirement; etc.).)"

The state’s assertions are wildly inaccurate.

First, the reference the state cites did not say that Montana has a 5% requirement; it correctly says that Montana requires 5,000 signatures, which is less than 1% of the registered voters. Also the NASS report does not make any generalizations about the range of requirements, nor does it calculate any percentages for the states with a fixed number of signatures.

More significantly, the state’s source is inaccurate. The National Association of Secretaries of State admits as much. In an e-mail dated June 18, John Milhofer, Policy Analyst for NASS, says, "The summary you are referring to is intended to provide general information about the process. It is not intended as a procedural guide or legal resource…While we make an effort to update materials like this periodically, it can be a challenge as laws and policies are constantly changing and it takes a significant amount of time to review the numerous statutes cited for each state. This document was originally created in 2012 and updated in 2016. I’m not sure when we will update it again."

Milhofer did not dispute that the NASS chart has the wrong requirements for the number of signatures in Arizona, Georgia, Maryland, North Carolina, Oklahoma, Pennsylvania, and Virginia. In each case the NASS number is higher than the actual requirement. The NASS chart has other errors as well, concerning deadlines. For example, it says the Colorado deadline is 155 days before the general election, but actually it is 90 days before. The California brief had seized on the inaccurate Colorado deadline as evidence that California’s deadline is lenient, compared to other states. But actually the two states have virtually identical deadlines.

This is not the first time the California attorneys have misinformed a court in this case. In the U.S. District Court, the state’s brief had errors about the number of signatures in five states.

These errors were: (1) the state said that Arizona is 3% of the number of registered voters, when it is actually approximately 1%; (2) it said that Oklahoma’s petition is 3% of the last presidential vote, when actually no petition is required; (3) it says that Pennsylvania’s petition is 2% of the last vote cast, when actually it is 5,000; (4) it says Maryland’s petition is 1% of the registered voters, when actually it is 10,000; (5) it says that Minnesota’s petition is 1% of the last vote cast, when actually it is 2,000 signatures.

The U.S. District Court had upheld the challenged law only two days after the oral argument, and the Judge assumed that all the state’s information about the laws of other states is accurate, and put it into his opinion. He also dismissed the case without even allowing a trial to get the full truth into the record.

This information will be put into De La Fuente’s reply brief. To summarize: the number of signatures in the median state, as a percentage of the registered voters, is only .25%, and there are no states in which the requirement is higher than California’s, except for New Mexico and Wyoming (with four other states virtually tied with California).

State	Legal Requirement	Code Reference	Required	Registration	%
Al	number stated in law	17-14-31	5,000	3,214,917	.16
Ak	1% of 2012 vote cast	15.30.025	3,005	528,879	.57
Az	3% reg. indps as of Mar. 2016	16-341E	35,514	3,588,466	.99
Ar	number stated in law	7-8-302	1,000	1,759,974	.06
Ca	1% reg voters as of Oct 2014	Elec. code 8400	178,039	19,411,771	.92
Co	pay filing fee	1-4-801	0	3,273,112	.00
Ct	number stated in law	9-453(d)	7,500	2,100,021	.36
De	1% of Dec. 2015 registration	Title 15, sec. 3002	6,526	675,663	.97
Fl	1% of Oct. 2014 registration	103.021(3)	119,316	12,863,773	.93
Ga	Court decision	Green Party v Kemp	7,500	5,430,571	.14
Hi	1% of 2012 pres. vote	Title 2, 11-113	4,347	749,917	.58
Id	number stated in law	34-708A	1,000	813,218	.12
Il	number stated in law	10 ILCS 5/10-3	25,000	7,988,678	.31
In	2% of 2014 sec of state vote	3-8-6-3	26,700	4,829,243	.55
Ia	number stated in law	Title 4, sec. 45.1	1,500	1,996,290	.08
Ks	number stated in law	25-303	5,000	1,817,773	.28
Ky	number stated in law	Title. 10, sec. 118.315(2)	5,000	3,306,120	.15
La	pay filing fee	Title 18, sec. 465C	0	3,022,526	.00
Me	number stated in law	Title 21-A, sec. 354	4,000	996,853	.40
Md	number stated in law	Elec. law, 5-703	10,000	3,946,712	.25
Ma	number stated in law	Chap. 53, sec. 6	10,000	4,534,974	.22
Mi	number stated in law	168.590b(2)	30,000	7,514,055	.40
Mn	number stated in law	204B.08	2,000	3,270,734	.06
Ms	number stated in law	23-15-359	1,000	1,881,147	.05
Mo	number stated in law	Title 9, sec. 115.321	10,000	4,209,387	.24
Mt	number stated in law	13-10-504	5,000	694,370	.72
Ne	number stated in law	32-620	2,500	1,208,054	..21
Nv	1% 2014 US House vote	Title 24, sec. 298.109	5,431	1,464,819	.37
NH	number stated in law	Title 4, 655:42	3,000	919,126	.33
N.J	number stated in law	19:13-5	800	5,818,332	.01
NM	3% of 2014 gub. vote	1-8-51	15,388	1,289,420	1.19
NY	number stated in law	elec. law, 6-142	15,000	12,493,250	.12
NC.	1.5% of 2012 gub. vote	163A-1005	67,025	6,896,349	.97
ND	number stated in law	16.1-12.02	4,000	581,641	.69
Oh	number stated in law	3513.257	5,000	7,861,025	.06
Ok	pay filing fee	Title 26, sec. 10-101.1	0	2,157,450	.00
Or	1% of 2012 pres. vote	249.735	17,893	2,568,183	.70
Pa	court order	Consti. Pty v Cortes	5,000	8,723,898	.06
RI	number stated in law	17-14-7	1,000	782,883	.13
SC	number stated in law	7-11-70	10,000	3,146,577	.32
SD	1% of 2014 gub. vote	12-7-7	2,775	544,409	.51
Tn	number stated in law	2-5-101	275	3,553,293	.01
Tx	1% of 2012 pres. vote	Elec. code 192,032	79,939	15,101,087	.53
Ut	number stated in law	20A-9-502	1,000	1,368,763	.07
Vt	number stated in law	Title 17, 2402(b)	1,000	471,619	.21
Va	number stated in law	24.2-543	5,000	5,529,742	.09
Wa	number stated in law	29A.20.121(2)	1,000	4,277,499	.02
WV	1% of 2012 pres. vote	3-5-23	6,705	1,274,887	.53
Wi	number stated in law	Title 2, 8.20(4)	2,000	3,004,051	.07
Wy	2% of 2014 US House vote	22-5-304	3,302	234,341	1.41

On June 22, North Carolina Governor Roy Cooper, a Democrat, signed SB 655, which moves the primary in all office from May to the first Tuesday after the first Monday in March. In 2020, the primary will be March 3. The bill had bipartisan support.

Because the independent candidate petition deadline is 15 days before the primary date, the new independent petition deadline will be February 16, which is unconstitutional. There was already a lawsuit challenging the April deadline, and now the Complaint will need to be amended to attack the February deadline. The case is Leifert v North Carolina State Board of Elections, m.d., 1:17cv-147.

California held its fourth primary under the top-two system on June 5. The votes aren’t all counted yet, and the write-in totals are not known, so it isn’t possible to know the complete list of minor party candidates who qualified for the November ballot by placing second, but here are some interesting facts that are known now:

The turnout is estimated to be 36.4% of the registered voters. It was boosted by the fact that five counties (including Sacramento and San Mateo, which are populous counties) sent every registered voter a mail ballot, for the first time in California history.

For the first time since top-two started, the California Green Party will have candidates for U.S. House on the November ballot. Two of them qualified because they filed in races with only one major party candidate running. One of the Greens was in a two-person race, and one of them was in a three-person race, with one Democrat, one Green, and one Libertarian.

For the second time in California top-two history, the majority party in a district lost a seat, because its vote was split up among too many candidates, whereas the weaker major party only had two candidates, and they placed first and second. This had happened in 2012 in U.S. House district 31, a Democratic district, where the only two Republicans placed first and second, shutting out all of the four Democrats. In 2018, the same accident befell the Republican Party in the 76^th Assembly district. The two Democrats in the race placed first and second, because the Republican vote was split among six candidates

For the first time ever in a California top-two race, a minor party placed second in a district which had more than a single major party person running. Mimi Robson, a Libertarian running in the 70^th Assembly district, placed second with 11,477 votes.

The race had two Democrats, who polled 40,471 votes and 8,833 votes. It is still true, however, that no minor party member has managed to place first or second in a race that had a member of both major parties running. In Robson’s race, there was no Republican. Robson is state chair of the Libertarian Party.

Finally, Michael Schaefer, who has been the attorney who has tried for many years to protect write-in voting in California, placed second in the race for Board of Equalization, 4^th district. Schaefer is a Democrat, age 80, from San Diego. He had won a landmark decision in the California Supreme Court in 1985, which said that the federal and state constitutions protect write-in space on ballots, Canaan v Abdelnour. But in 2002 the State Supreme Court retracted that decision. Schaefer was the attorney both times. The vote so far in his race is: State Senator Joel Anderson, Republican, 488,202; Schaefer, Democrat, 265,719; John F. Kelly, Republican, 259,927; David Dodson, Democrat, 231,966; Ken Lopez-Maddox, Democrat, 224,436; Jim Stieringer, Republican, 57,922; Nader F. Shahatit, Republican, 31,764.

As of June 26, the Montana state court that is hearing the case over whether the Green Party has enough valid signatures has not ruled. So, although the Green Party has been through its own primary (on June 5), it still doesn’t know if the candidates nominated at its primary will be on the November ballot.

The state said the party has enough valid signatures, but the Democratic Party then sued to reverse that. The last hearing was on May 17. The case is Larson and Democratic Party v Stapleton, First Judicial District, Lewis & Clark Co., 2018-295.

At the June 5 primary, the vote in the Green Party primary for U.S. Senate was: Steve Kelly 971; Timothy Adams 615.

On June 12, South Carolina held primaries. The Republican primary ballot asked "Do you believe that voters should have the option to choose to affiliate with a political party when they register to vote or change their voter registration in South Carolina?" The measure passed with 82.4%. However, it is not binding. It will be used to try to persuade Republican legislators to pass a bill next year letting parties close their primaries.

The U.S. Supreme Court handed down several election law decisions during June. On June 11 it ruled in Husted v A. Philip Randolph Institute that Ohio’s system of purging voters does not violate federal law. On June 14 it ruled in Minnesota Voters Alliance v Mansky that a Minnesota law banning anyone from wearing clothes in the polling place that carry a political message violates the First Amendment (states can ban messages about candidates or measures on the ballot, but not all political messages). On June 18 it sent the Maryland gerrymander case, Benisek v Lamone, back to the lower court. On June 25 it sent the North Carolina gerrymander case, Rucho v Common Cause, back to the lower court. Also on June 25, it mostly upheld Texas congressional and legislative redistricting, which had been attacked as racially discriminatory, in Abbott v Perez.

On May 29, a U.S. District Court ruled that the Maine Republican Party must use Ranked Choice Voting for its primaries. The party had argued that the freedom of association clause means that if the party doesn’t want to use RCV, it can’t be forced to do that. Maine Republican Party v Dunlap, 1:18cv-179.

On June 1, Alaska state representative Paul Seaton said that he has left the Republican Party and re-registered as an independent. He is the fifteenth state legislator to have left either of the two major parties since the November 2016 election. He is running for re-election this year, not as an independent candidate. Instead he is seeking the Democratic nomination. Alaska law lets parties nominate non-members.

Also during June, two prominent Republicans who do not hold elective office left the party. On June 20, Steve Schmidt said he has changed his registration to independent. He had been Republican presidential nominee John McCain’s campaign manager in 2008. He says he will vote for Democrats from now on. On June 21, Brian J. Herr, who was the Massachusetts Republican nominee for U.S. Senate in 2014, also became an independent.

On June 16, the Democratic Party said that its 2020 presidential convention will be July 13-16. Never before had a major party chosen the dates of its presidential convention so early in the cycle. The Democrats didn’t choose the dates of their 2016 convention until January 23, 2015.

The Democratic 2020 dates are also atypical for being so early. This is the earliest date for a Democratic presidential convention since 1992, when the dates were also July 13-16.

The Republican Party hasn’t chosen its 2020 dates yet. The last time the Republican Party held a convention that early was in 1964, when its convention was, by coincidence, also July 13-16.

By tradition, the party that holds the White House always nominates later than the other major party.

On June 1, California Governor Jerry Brown announced that he had appointed Stephen M. Place to the Superior Court for Inyo County. Place is a registered Green Party member.

Jeff Hewitt, a member of the California Libertarian Party and Mayor of Calimesa, California, was a candidate for Riverside County Supervisor on June 5. He placed second, and because no one received 50%, he will be in the November run-off against Russ Bogh, a former Republican state legislator.

On June 4, the city council of Las Cruces, New Mexico, voted to use Ranked Choice Voting for city office, starting in 2019. Las Cruces has a population of 102,000.

Ohio voter registration forms do not ask applicants to choose a party. But the Ohio Secretary of State still calculates how many members each qualified party has. The calculation is based on how many voters choose the primary ballot of any particular party. After the May 8, 2018 primary, the Secretary of State said there are 7,353 Green Party members, the most it has ever had in Ohio. There are 2,043,219 Republicans, and 1,436,637 Democrats. Those are the only three ballot-qualified parties in Ohio, although the Libertarian Party expects to qualify by submitting a petition on July 2. In other petitioning news, the Libertarian Party has submitted its Illinois statewide petition, and the Constitution Party has submitted its New Mexico party petition.