WASHINGTON SUPREME COURT RULES AGAINST FREEDOM FOR PRESIDENTIAL ELECTORS

On May 23, the Washington Supreme Court ruled 8-1 that presidential electors who vote for someone other than the candidate who wins the most popular votes may be fined $1,000. In the Matter of Guerra, 95347-3.

This is the first court decision in the nation to rule on whether presidential electors have the freedom to vote for any qualified candidate, or whether states can force them to vote according to that state’s popular vote. Similar cases from U.S. District Court in California, and the Eighth Circuit from Minnesota, had ducked the issue by saying the case was moot, or that the plaintiffs lacked standing.

The decision is of poor quality. For the most part it depends in the 1952 U.S. Supreme Court decision Ray v Blair, 343 U.S. 214. But that case was about whether the Alabama Democratic Party had the right to ask its candidates for presidential elector to sign a pledge, promising to vote for the winner of the popular vote in that state if they were nominated. Alabama at the time chose party nominees for presidential elector in primaries, something no longer done in any state. Thus Ray v Blair was about political party freedom of association rights, and dealt with the amount of control state parties could impose on their own nomination process. It had nothing to do with individuals who had already been chosen as presidential electors.

The decision also sets up a straw argument, and then rebuts it. It goes to great lengths to show that presidential electors exercise a state function, not a federal function, an irrelevant point.

The strongest argument in favor of presidential elector autonomy is the clear history that the founding fathers expected presidential electors to exercise their own judgment. No one disputes this.

The attorney for the three "disobedient" presidential electors, Law Professor Larry Lessig, emphasized in the oral argument that the word "elector", both in the 18^th century and currently, means someone who has the power to decide. The opinion completely ignores that point. It is not known if Lessig will appeal to the U.S. Supreme Court.

The dissent, by Justice Steven Gonzalez, says, "There is a meaningful difference between the power to appoint and the power to control." The majority opinion does not grapple with his point.

In the meantime, the same issue is pending in the Colorado case in the Tenth Circuit. That case is Baca v Griswold, 18-1173. The oral argument was held on January 24, 2019. After the Washington State Supreme Court issued its opinion, attorneys for Colorado sent a copy of the Washington state opinion to the three judges who will decide the Colorado case.

In response, attorneys for the Colorado presidential electors wrote the three Tenth Circuit judges a letter dated May 28, 2019. It says, "The Washington Supreme Court’s opinion is incorrect for the reasons discussed in Appellants’ briefs and at oral argument. Instead, as the dissent in Guerra correctly notes, "the Constitution provides the State only with the power to appoint, leaving the electors with the discretion to vote their conscience. The majority in Guerra has no persuasive response to this key point."

In the 2016 presidential election, seven presidential electors voted for someone other than Donald Trump or Hillary Clinton. That was the largest number of "disobedient" presidential electors in U.S. history, for president (as opposed to vice-president).

On May 17, Nebraska Governor Pete Ricketts signed LB 411. It lowers the number of signatures for non-presidential independent candidates, from 10% of the number of registered voters (over 120,000 signatures for statewide office), to 4,000 for statewide office and 2,000 for U.S. House.

The new law is identical to the law that existed in the state until 2016. The 2016 session of the legislature vastly increased the number of signatures for independent candidates, but last year the 2016 law was invalidated in federal court, so the new 2019 law reflects the court opinion. That lawsuit had been Bernbeck v Gale.

On May 22, Arizona Governor Doug Ducey signed SB 1154. It moves the petition deadline for newly-qualifying parties from February of the election year, to November of the year before the election.

The June 1 B.A.N. had said this bill had been defeated, and it had lost on the House floor on May 2. However, a few weeks later, the House voted to reconsider the bill, and then passed it.

Petition deadlines that are too early have been held unconstitutional in 53 other cases. It is somewhat likely that the Green Party, which is not on the ballot but which is petitioning, will sue to overturn this new deadline. The Green Party had sued Arizona over the February deadline in 2014, but the case lost because the party didn’t submit any evidence showing how it injured the party. The next case will include evidence.

On May 31, the Ninth Circuit upheld the number of signatures needed for small qualified party members to get on their own party’s primary ballot. Arizona Libertarian Party v Hobbs, 17-16491. The decision is by Judge M. Margaret McKeown, a Clinton appointee. It is also signed by Judge Clifford Wallace, a Nixon appointee, and Judge A. Wallace Tashima, a Clinton appointee.

The law that the Libertarian Party challenged was passed in 2015. It is so severe, no Arizona Libertarian was able to run for any state office, nor congress, in either 2016 nor 2018. The basis for the decision is that the burden is "slight", but the only reason the court came to that conclusion is that all the party’s evidence had been excluded by the U.S. District Court. The party had hoped that the Ninth Circuit would see the injustice of having all its evidence excluded. But the Ninth Circuit relegated that issue to a short footnote. At the oral argument in the Ninth Circuit on March 12, the attorney for the Libertarian Party had tried to discuss the evidence exclusion, but Judge McKeown, who was presiding, virtually told the attorney that she didn’t want to hear any discussion of that.

The evidence showed that one candidate spent $10,000 on his petition, without success.

The 2015 law also makes it virtually impossible for the Libertarian Party to nominate any candidates by write-in at its own primary. The 2015 law is discriminatory, because it only applies to parties that have been on the ballot for more than four years. If a party has not been on the ballot for as long as four years, then its primary petitions are far easier, and it may nominate a write-in candidate in its own primary with just one write-in. That is why the Green Party had many nominees on the Arizona ballot in 2018, whereas Libertarians did not have any.

In 2018, Arizona was one of only five states which had legislative elections, and in which the Libertarian Party did not have any candidates for the legislature.

The Ninth Circuit’s approach wastes judicial resources, because inevitably the Libertarian Party will challenge the same law again, and this time will be certain that its evidence is not excluded. The party asked for rehearing en banc on June 14; that request is still pending.

This is the third ballot access constitutional case in recent years in which the law was upheld because the party’s evidence was excluded on a technicality. The other such cases were in the Eleventh Circuit in Stein v Secretary of State in 2014; and in the Sixth Circuit in Green Party of Tennessee v Hargett in 2016. The Stein case concerned the Alabama party petition of 3% of the last gubernatorial vote, due in March; and the Tennessee party petition of 2.5% of the last gubernatorial vote.

On June 11, a U.S. District Court Magistrate John Z. Boyle upheld the Arizona independent presidential petition, which for 2020 requires approximately 37,000 signatures. The exact requirement can’t be known until next year, and will be 3% of the number of registered independent voters as of mid-2020. De La Fuente v State, 2:16cv-2419.

The Magistrate noted that only one independent presidential candidate has managed to get on the Arizona ballot since Ross Perot did so in 1992. That one more recent success was by Ralph Nader in 2008. However, Magistrate Boyle said that is not important, because there were virtually no independent presidential candidates who wanted to get on the ballot in Arizona in recent years. That is false.

Presidential candidates of significance who failed to get on the Arizona ballot are Evan McMullin in 2016 (he placed fifth in the nation); former Congressman Virgil Goode in 2012 (he placed fifth); Chuck Baldwin in 2008 (he placed fifth); Ralph Nader in 2004 (he placed third); Michael Peroutka in 2004 (he placed fifth); and David Cobb in 2004 (he placed sixth).

Magistrate Boyle said that in many other states in recent years, no independent presidential candidate qualified. For example, he wrote that in 2012, Arizona was one of 41 jurisdictions with no independent presidential candidates on the ballot.

That is also false. In 2012, 25 jurisdictions had a presidential candidate who used the independent presidential procedure. Magistrate Boyle put this error in his opinion because the state had asserted it. But the state only counted presidential candidates who used the ballot label "independent". In 26 states, presidential candidates who use the independent procedure are permitted to choose a partisan label other than "independent", and the state and the opinion excluded all the candidates who didn’t use "independent" as a label. They even excluded candidates who appeared on the ballot with such labels as "by petition" or "unaffiliated."

A well-written opinion is expected to mention precedents that disagree with the writer’s conclusion. But the Arizona opinion simply ignores all the precedents that support the plaintiff.

The opinion also upheld the county distribution requirement for the new party petition in Arizona. There are twenty precedents striking down county distribution requirements for statewide petitions, but the opinion only mentions one of them, a Ninth Circuit opinion striking down the Idaho initiative distribution requirement. The opinion says the Arizona distribution requirement is easy, and unlike the Idaho requirement. But many even easier distribution requirements have been struck down, including one in Pennsylvania struck down by the Third Circuit in 2017.

On June 10, Texas Governor Greg Abbott signed HB 2504, making two large changes to ballot access for minor parties, one of them helpful and the other hurtful. The bill makes it easier for a party to remain on the ballot, and restores the Green Party to the ballot. But the bill imposes filing fees on the non-presidential nominees of minor parties. A lawsuit is expected to be filed soon against the imposition of filing fees on candidates nominated in minor party conventions. The fees are $5,000 for US Senate; most other statewide races $3,750; U.S. House $3,125. The petitions in lieu of filing fee are 5,000 signatures for statewide office and 500 for U.S. House and legislature.

Because the bill puts the Green Party back on the ballot in Texas, the party is seriously hoping that it will be able to place its 2020 presidential nominee on the ballot in all states, for the first time ever. However, in order to do that, the party will probably need to sue Indiana and Arizona and win those cases. Also, in Oklahoma, the party can’t realistically hope to be on for President unless it is either willing to pay a filing fee of $35,000, or to sue over the amount. No other filing fee in Oklahoma is greater than $2,500.

On May 29, Colorado Governor Jared Polis signed HB 19-1278, which increases the number of signatures for non-presidential independent candidates substantially.

On June 10, Vermont Governor Phil Scott signed SB 107. It allows voters to sign more than one candidate petition for the same office. This is true for both primary petitions and general election petitions.

On June 5, the Seventh Circuit upheld the petition requirement for a candidate for Cook County countywide office in the Democratic primary. Acevedo v Cook County Officers Electoral Board, 18-2979. The plaintiff, Edward Acevedo, had tried to get on the primary ballot in 2018 for Sheriff. He needed 8,236 signatures (one-half of 1% of the Democratic Party’s vote in 2016).

He had over 5,000 valid signatures. He argued that it is unconstitutional for Illinois to require more than 5,000 signatures for his office, because candidates running for statewide office in any Democratic primary in Illinois only need 5,000 signatures.

The U.S. Supreme Court has ruled twice that Illinois cannot require more signatures for general election petitions for office in just part of the state than it requires for statewide office. Illinois State Board of Elections v Socialist Workers Party in 1979, and Norman v Reed in 1992. Acevedo depended on these precedents, and did not present evidence that it is a severe burden to collect as many as 8,.236 signatures.

But the Seventh Circuit said that in order to win, it wasn’t enough to point out the comparison between the statewide primary petition and the Cook County primary petition; he also should have showed that the requirement is a severe burden.

If Acevedo had filed that evidence, it should not have been difficult to show that the requirement is severe. In 2018, no Republican managed to get on the Republican primary ballot for Sheriff, and only one Democrat managed to do so. Therefore, the voters had no effective choice in the 2018 Sheriff’s race. The Seventh Circuit decision does not mention that only one candidate was able to run. The decision is by Judge Amy Coney Barrett, a Trump appointee. It is also signed by Judge David Hamilton, an Obama appointee; and Judge Amy J. St. Eve, a Trump appointee.

On June 7, the Pennsylvaia Supreme Court, by 4-3, upheld the virtual ban on fusion between major and minor parties. Working Families Party v Commonwealth, 34 EAP 2017.

Pennsylvania permits fusion between two major parties. A major party nominee can be both the Democratic nominee and the Republican nominee by winning one primary the standard way, and the other primary by write-in votes. Every year, there are about six state legislative candidates who have both major party nominations.

But it is more difficult for a candidate to receive the nomination of both a major party and a minor party. The candidate must first petition under the minor party label and submit that petition before the primary, which is in April in presidential years and May in other years. Then, the candidate must win the major party primary on write-in votes. In practice, this is so difficult, no candidate for state or federal office has managed to do it in at least thirty years.

The Working Families Party cited a 1999 decision of the Third Circuit that said Pennsylvania violated the Constitution by letting major party school board candidates be the nominees of both major parties, while making it literally impossible for a candidate to be both a major and a minor party nominee. Reform Party of Allegheny County v Allegheny County Department of Elections, 174 F.3d 305. But the Pennsylvania Supreme Court said that was different, because in that case, fusion between the major and minor party was literally impossible, not merely difficult.

The Pennsylvania Supreme Court also said that fusion can injure minor parties, because the members of the minor party may not want to engage in fusion, but if a successful petition was submitted by a candidate who wanted fusion, the minor party couldn’t stop it. But there are other solutions to that problem, such as giving minor party organizations the right to either accept or reject the proposed fusion candidate.

Alabama: on June 1, Scotusblog listed Hall v Merrill as a cert "petition of the week." Hall v Merrill is the only ballot access case now pending in the U.S. Supreme Court. It challenges the Alabama 3% petition requirement for independent candidates for U.S. House in special elections, when there isn’t much time to collect that many signatures. Scotusblog is the leading news source for U.S. Supreme Court news. It regularly reads all the pending cert petitions and singles out those that it feels have a fair chance of being accepted by the Court. Alabama has not yet responded to the cert petition, and has twice asked the Court for more time to respond. The Coalition for Free & Open Elections (COFOE) recently filed an amicus in this case. The Court won’t decide whether to hear it until October 2019 at the earliest.

Arkansas: on June 17, U.S. District Court Judge James Moody enjoined a law that makes it illegal for anyone to give a campaign donation to a candidate if the election is more than two years in the future. Jones v Jegley, e.d., 4:19cv-234. But then he stayed his own decision while the state tries to reverse it in the Eighth Circuit.

Arkansas (2): on June 4, U.S. District Court Judge Kristine Baker held a trial in Libertarian Party of Arkansas v Thurston, e.d., 4:19cv-214. The case concerns the 2019 law that almost tripled the number of signatures for a new party. A decision is expected very soon.

California: the U.S. District Court that is hearing Soltysik v Padilla, the lawsuit over whether members of unqualified parties may have their party listed on the ballot, will have a trial in 2020. The attorneys for the plaintiff, Emidio Soltysik, tried to persuade the court to speed up the trial, but the state argued it didn’t have enough time to find experts on its side unless the trial was next year. Soltysik filed the case in 2014. He is a registered Socialist but the state law forced him to have "party preference: none" when he ran for the legislature.

Delaware: on May 7, the state’s request for rehearing en banc was rejected by the Third Circuit, in Adams v Governor, 18-1045. The original panel of three judges had struck down the Delaware constitutional requirement that all state judges be members of one of the two largest parties. The vote was 9-4. The judges who wanted to grant the rehearing request were Kent A. Jordan and Thomas Hardiman (Bush Jr. appointees); Cheryl Ann Krause (an Obama appointee); and Stephanos Bibas (a Trump appointee). The state has not said yet whether it will seek U.S. Supreme Court review.

New York: on May 7, the Second Circuit issued a one-paragraph order in Redpath v Spano, 18-2089. The issue is the ban on out-of-state circulators. The Libertarian Party had won this case in U.S. District Court before the November 2018 election. The state appealed, and also argued that the case should be dismissed as moot, because in November 2018 the party became ballot-qualified for the first time. The Second Circuit agreed that the case is moot.

On June 25, the Pennsylvania Senate passed SB 421 by 30-20. It abolishes the straight-ticket device. Also, on June 26, the House Appropriations Committee amended SB 48, the bill to appropriate money for new vote-counting machines that have a paper trail. The amendment to SB 48 also eliminates the straight-ticket device.

Republicans in the legislature want to eliminate the device, and they have a majority in both houses of the legislature. But the Governor, Tom Wolf, is a Democrat. Republicans were afraid that if they sent the Governor a bill to eliminate the device, and the bill does nothing else, he might veto it. But they hope he will not want to veto the appropriation bill.

Other states with the device are Alabama, Indiana, Kentucky, Michigan, Oklahoma, South Carolina, and Utah.

California: on May 28, the State Senate passed SB 212 by 28-8. It lets non-charter cities and counties use Ranked Choice Voting for elections for their own officers. Current law only allows charter cities and counties to do that.

Kansas: on June 11, the Democratic Party said it will hold a presidential primary administered by the party. The polls will be open 10 a.m. to 4 p.m. on Saturday, May 2. Ranked Choice Voting will be used.

Maine: the legislature almost approved Ranked Choice Voting for the presidential primary, and the presidential general election. LD 1083 passed both Houses on June 19, but the Senate vote was only tentative, and then the legislature adjourned before the Senate could vote again. The legislature must return later this year and the bill might pass then.

New York city: voters will vote in November 2019 on whether to use Ranked Choice Voting in future city partisan primaries.

Massachusetts: the Easthampton city council recently put a ballot question on the 2019 ballot, asking voters if they want to use Ranked Choice Voting for elections for city office. If the voters pass it, and the state legislature approves, the system would be used in 2021.

On May 23, the New Hampshire legislature passed HB 588. It deletes the requirement that a presidential primary candidate must be registered in the party whose primary he or she is entering. The bill has still not been sent to the Governor.

The old law was never enforced. It didn’t make sense, because in 19 states, there is no such thing has registration into a party, and many presidential candidates lived in such states.

Two bills are moving through the California legislature to alter who can be on a presidential primary ballot. California has six ballot-qualified parties, and all of them are entitled to a presidential primary.

SB 505 sets out requirements for a candidate to get on a presidential primary ballot. Current law merely says that the Secretary of State shall put "recognized" candidates on ballots, and does not even require them to file. The bill requires candidates to file, and requires them to fulfill at least one requirement. The easiest such requirement is to have obtained a spot on the ballot in one other state. The bill passed the Senate on June

SB 27 keeps presidential primary candidates off the ballot if they do not submit copies of tax returns for the last five years. It appears to conflict with the California Constitution, Article II, sec. 5(c), which says that the Secretary of State will put "recognized" candidates on the ballot. The bill’s author, State Senator Mike McGuire, has never explained how his bill is consistent with the state Constitution.

Both bills passed the Assembly Elections Committee on June 20.

Maine: on June 17, the Maine House defeated LD 816, the National Popular Vote Plan bill. It had passed the Senate earlier. Democrats have a majority in both houses of the legislature, but even though most Democrats supported the bill, some did not.

Nevada: on May 30, Governor Steve Sisolak, a Democrat, vetoed AB 186, the National Popular Vote Plan bill. No Democratic Governor had ever before vetoed one of these bills.

Oregon: on June 12, Governor Kate Brown signed SB 870, the National Popular Vote Plan bill.

Mr. President, How Long Must We Wait? by Tina Cassidy, 2019, Atria, 289 pages.

The subtitle is "Alice Paul, Woodrow Wilson, and the Fight for the Right to Vote." The book is a riveting history of the fight for women’s suffrage in the 1910’s decade. Probably few Americans are aware of how difficult it was for women to gain the vote nationwide during that decade, and how badly the campaigners for women suffrage were treated by the federal government.

Today, we are accustomed to activists picketing the White House. But, until suffrage advocates started doing that in 1917, no group had ever demonstrated in front of the White House. The idea was considered to be extremely impolite and unseemly. For a short while the pickets were tolerated, but then the government decided such activity was illegal, and all demonstrators were arrested. As the struggle continued, the government started treating jailed demonstraters very badly. When they refused to eat, they were force fed. They were also sometimes locked up in prisons that were unsanitary, cramped, dirty, and lacked good air circulation.

The motivation of the demonstrators was to persuade President Woodrow Wilson to ask Congress to pass the proposed Woman’s Suffrage amendment to the Constitution. He steadily refused to do that, not only throughout his first term, but even into almost all of his second term. He said he privately supported the amendment, but he also said his party, the Democratic Party, did not, and he would not mention the issue in any message to Congress until his party supported the idea.

The book also shows how imaginative the suffrage supporters were. At the World’s Fair in San Francisco in 1915, a petition in support of suffrage was signed by 400,000 people.

To this day, this is the largest petition ever gathered in just one location, in world history. The suffragist supporters then drove across the United States with their precious petition, which was several miles long when unrolled. The trip took months due to the poor roads.

The book is marred by a factual error. It says that Jeanette Rankin of Montana was the first woman to run for Congress. Actually women were permitted to run for Congress before they were allowed to vote. This is because the U.S. Constitution sets forth the requirements to run for federal office, and it never had a sex qualification. The Socialist Party of Kansas placed its nominee, Kate Richards O’Hare, on the ballot for U.S. House in 1910, four years before Kansas women could vote.

The May 1, 2019 B.A.N. carried a chart listing 2020 presidential primary dates, but since then, the deadlines have changed in four states. The Colorado primary will be March 3, not March 10. The Georgia primary will be March 24, not March 3. The Louisiana primary will be April 4, not March 8. The Maine primary will be March 3, not March 10.

California State Senator Tom Umberg has amended SB 696, to make it illegal for any party to have "Independent" in its name. The amendment has its first hearing on July 3, in the Assembly Elections Committee. The American Independent Party has been on the ballot in California since 1968, and will fight this bill. The author says the party’s name causes confusion, and that people register into the party, thinking they are becoming independent voters.

Never before in U.S. history has a state passed a law to require a party to change its name.

On June 3, David Bergland died, one day before his 84^th birthday. He was the Libertarian Party presidential nominee in 1984, and also the vice-presidential nominee in 1976. He was also national chair of the party three terms, and the author of one of the best-known books on libertarian ideas, Libertarianism in One Lesson.

He and his wife, Sharon Ayres, were instrumental in recruiting Harry Browne to be the party’s presidential nominee in 1996. It hadn’t been easy to persuade Browne to run, because his books before 1996 had advocated that individuals abstain from activism.

Bergland’s 1984 campaign won the most important ballot access victory that the Libertarian Party ever won. Bergland sued Georgia in 1984, and lost in U.S. District Court against the requirement that he submit 61,670 signatures to be on the ballot, which was 2.5% of the number of registered voters. But after the election, the Eleventh Circuit reversed and remanded. Bergland v Harris, 767 F.2d 1551, was the first federal court decision to say that Jenness v Fortson, the terrible 1971 U.S. Supreme Court opinion from Georgia that upheld 5% petitions, does not apply to presidential elections. Bergland v Harris reversed a 1976 3-judge U.S. District Court opinion, also from Georgia, Ashworth v Fortson, 424 F.Supp.1178, that had said Jenness v Fortson does apply to presidential elections.

The Bergland decision has since been followed by other court decisions chipping away at Jenness. Also, the Bergland decision persuaded the Georgia legislature to ease the vote test for a party to stay on, from 20%, to approximately 1.5% (but only as applied to statewide office), which has made it possible for the Libertarian Party to be on the Georgia ballot for statewide office automatically.

On June 12, Howard Schulz suspended his independent presidential campaign. He had never formally declared as an independent presidential candidate, but he had been campaigning as though he were an announced candidate.

On June 5, former Rhode Island Governor and U.S. Senator Lincoln Chafee revealed that he has changed his registration from independent to Libertarian. He now lives in Wyoming. He had previously been first a Republican, then a Democrat, and had sought the Democratic presidential nomination in 2008.

Libertarian members won non-partisan elections recently. Lance Lehmann was elected to the Rapid City, South Dakota board of aldermen on June 26. Wallace Dunn was elected to the Ector County Hospital Board in Texas on May 4. Also, on June 12, Binghampton, New York city councilmember Dani Cronce said that she had changed her registration from Democratic to Libertarian. That office is partisan. She is not running for re-election this year.

On May 28, Howie Hawkins of Syracuse, New York, declared his candidacy for the Green Party presidential nomination. As the Green nominee for Governor of New York, Hawkins three times polled enough votes to put or keep his party on the ballot. In 2010 he received 59,928 votes (1.29%); in 2014, 184,419 (4.84%); in 2018, 103,946 (1.70%). The only other Green who ever met the 50,000-vote requirement was Al "Grandpa" Lewis in 1998.

Filing recently closed for the 2019 legislative elections in New Jersey and Virginia. In New Jersey, there are only three minor party candidates for the legislature, all Libertarians. In Virginia, the State Board of Elections won’t release the list of candidates until July 1, so this information will be in the August 1 2019 B.A.N.