DELAWARE WILL NO LONGER DEFEND ITS BAN ON MINOR PARTY AND INDEPENDENT JUDGES

On January 30, the government of Delaware agreed that its ban on minor party and independent voters from being appointed to most judicial positions is unconstitutional. Thus ends a six-year struggle to overturn that law in court. The state filed paperwork in U.S. District Court, agreeing to a consent judgment that the ban cannot stand. Adams v Carney, 1:20cv-1680.

There is no bill yet in the Delaware legislature to repeal the ban, because the legislature recessed on January 26. It returns on March 7, and presumably a bill will be introduced soon after.

The ban was passed in 1951. It says that the State Supreme Court will consist of five members, three of whom shall be members of one "major party", and the other two of the "other major party". The Delaware election code defines a major party as one with registration of at least five percent of the state total. Technically there could be more than two major parties, although no third party has ever come close to having 5% of the registration in Delaware. The biggest third party, the Independent Party, has 1.3% of the registration.

The Delaware Constitution is similarly restrictive for Superior Courts and Chancery Courts.

James R. Adams, a Delaware attorney who is a registered independent, filed his lawsuit against the ban in 2017. He won the case in U.S. District Court in 2018. The state appealed but Adams won again in the Third Circuit in 2019. The state asked for rehearing en banc but that was denied also, although four Third Circuit judges wanted to rehear the case.

Then the state appealed to the U.S. Supreme Court, which ruled in 2020 that Adams did not have standing because he hadn’t applied for judicial appointments. Carney v Adams, 19-309.

Adams had been thinking about standing, and while the case was pending in the U.S. Supreme Court, he had applied to be appointed to five judicial vacancies. He was wise to have done that, because that put him in a position to file an entirely new case, with his beefed-up standing. He filed his new case the very day after the U.S. Supreme Court ruled against him on standing.

The forces against Adams were formidable. When his case was in the U.S. Supreme Court, amici briefs on the state’s side were filed by the Delaware Bar Association, a group of retired Delaware Supreme Court Chief Justices, the Delaware State and Local Government Association, the U.S. Chamber of Commerce, the Republican National Committee, the Brennan Center, a group of former Delaware Governors, and the Campaign Legal Center.

The Conference of Chief Justices of the states even filed a brief that said it was in support of neither side, but which actually supported the state.

The only groups that filed amici briefs on Adams’ side were the CATO Institute, Public Citizen, and the Libertarian Party. The ACLU did not file anything.

The rationale for the ban was that partisan balance in the state courts was a very good thing, and that if minor party members or independents could be appointed, that would upset the partisan balance.

Various briefs on the side of the state argued that a Green Party judge would simply bolster the Democratic side, and that a Libertarian would bolster the Republican side. They argued that an independent might be ideologically in sync with one of the major parties. Adams himself was attacked because before he had been a registered independent, he had been a registered Democrat, so his critics argued that if he were on a court, he would be a "secret" Democratic vote.

This argument assumes that the positions of the Republican and Democratic Parties cover the whole range of ideology. This is a very shallow belief. The belief is also insulting to judges, because it assumes they let their party membership determine their decisions.

In 2021, the Mississippi Supreme Court invalidated the state’s initiative process because the state Constitution said there should be signatures from all five U.S. House districts, but the state no longer had five districts. This was the first time any state with the initiative process had lost it.

On February 9, the Senate passed SCR 533, to restore the initiative. It would require signatures of 12% of the registered voters, which is much harder than the old requirement, which was 12% of the last gubernatorial vote. The old requirement was 106,190 signatures, but the new one is approximately 240,000 signatures. Also the old procedure could be used to amend the Constitution, but the bill only allows statute changes. Now the bill goes to the House.

Arizona: on February 15, the House Municipal Oversight and Elections Committee passed HCR 2033. It is a proposed constitutional amendment that says that any qualified political party is permitted to have nominees and to place those nominees on the November ballot. If this passes, it would block any possible future statutory initiative to deprive parties of their ability to nominate candidates, such as proposals for a top-two or top-four primary.

Arkansas: on February 28, the Senate State Agencies and Governmental Affairs Committee heard SB 277. It lowers the number of signatures for a new party from 3% of the last gubernatorial vote (27,212) to exactly 10,000 signatures. It expands the petitioning period from three months to 15 months. It moves the petition deadline from the year before the election, to three weeks before the primary.

The bill received four "yes" votes and one "no" vote, but because other members of the Committee were absent, it didn’t pass, although it probably will be brought up again.

Colorado: on February 16, the Senate State, Veterans & Military Affairs Committee defeated SB23-101. It would have required qualified minor parties to submit a difficult petition for each one of its nominees. Currently qualified minor parties nominate by convention and no petitioning is needed. The vote was 4-1.

Connecticut: Representative Devin Carney (R-Old Saybrook) has introduced HB 5694, to provide for a top-two system. From the experience of California and Washington, we know that top-two systems keep all minor party candidates off the general election ballot in races when someone from both major parties runs for the same office.

Indiana: Representative Ryan Dvorak (D-South Bend) has introduced HB 1632, to ease petitions for independent candidates and the nominees of unqualified parties. The bill drops the petition from 2% of the last vote for Secretary of State, to 250 signatures or 2%, whichever is less.

Kansas: on February 23, the House passed HB 2086, an omnibus election law bill. It requires declared write-in candidates to pay a filing fee. Courts in California, Maryland, and West Virginia have held in the past that it is unconstitutional for states to require write-in candidates to pay filing fees, because the U.S. Supreme Court said in Lubin v Panish that candidate filing fees are unconstitutional unless they are needed to keep ballots from being too crowded, and of course write-in candidates’ names don’t appear on ballots.

Maryland: on March 7, the House Ways & Means Committee will hear HB 1112, which legalizes electronic signatures on ballot access petitions.

Minnesota: Senator Jim Carlson (D-Eagan), chair of the Senate Elections Committee, has introduced SF 1827. It changes the definition of a qualified party from a group that got 5% for a statewide race in either of the last two elections, to 10%. Already Minnesota’s definition of "party" is one of the most severe in the nation. For example, it is one of only six states in which the Libertarian Party has never been ballot-qualified (the others are New Jersey, Pennsylvania, Rhode Island, Tennessee, and Virginia; and it has only been qualified in Connecticut for certain offices, and in Georgia only for statewide offices). Only two states now have 10% vote tests, New Jersey and Virginia.

New Hampshire: HB 116, which would have vastly increased candidate filing fees for U.S. Senator and Governor, was held in committee and cannot pass.

Missouri: State Senator Sandy Crawford (R-Buffalo) has introduced SB 102. It would require initiative circulators to be registered voters in the state. The U.S. Supreme Court ruled in 1999 in Buckley v American Constitutional Law Foundation that states cannot require circulators to be registered voters.

Nevada: the Secretary of State has proposed SB 53, which moves the deadline for candidates to file a declaration of candidacy from March to February. The law even applies to parties that nominate by convention. Similar early deadlines for non-major party candidates to file declarations of candidacy have been struck down in Kentucky, South Carolina, and West Virginia.

New Mexico: on February 25, a Saturday, the Senate passed SB 180 by 23-13. It doubles the number of signatures needed by the non-presidential nominees of qualified minor parties, from 1% of the last gubernatorial vote, to 2%. That would be 14,246 signatures in 2024. New Mexico is the only state that requires the nominees of a qualified party to submit a petition. The law is not logical, because if the party has already submitted a petition to qualify itself, or passed the vote test, then its nominees should be deemed to have support. All the votes in favor were cast by Democrats; all the votes against by Republicans. The Green Party is trying to defeat the bill in the House.

New York: five Republican Assemblymembers have introduced A3312, which would reduce the statewide petition for independent candidates and the nominees of unqualified parties from 45,000 to 15,000. It would also ease the definition of a qualified party, from a group that polled 2% for the office at the top of the ticket (about 140,000 votes) to exactly 50,000.

There are now two bills in New York to improve ballot access.

New Mexico(2): HB 347, which would have lowered ballot access petitions for all types of candidates, was tabled in Committee on February 22.

North Dakota: on February 21, the Senate passed SCR 4013. It would require initative circulators to have lived in the state 120 days before the first signatures is collected. It would ban paying initiative circulators. That latter provision is unconstitutional; in 1988 the U.S. Supreme Court ruled unanimously that states can’t ban paying circulators, in Meyer v Grant.

Oklahoma: Senator Julia Kirt (D-Oklahoma City) has introduced SB 288, to decrease the number of signatured needed for candidates who don’t or can’t pay the filing fee. The old law requires a petition of 2% of the electorate; the bill sets the statewide offices at 4,000 signatures and the U.S. House at 2,000.

Oklahoma(2): Senator Mary Boren (D-Norman) has introduced SB 568, to repeal the straight-ticket device.

Vermont: on February 22, the House Government Operations & Military Affairs Committee passed HB 97. It would move the petition deadline for independent candidates and the nominees of unqualified parties from August to May. It would also ban "sore losers". And it would double the number of write-in votes needed for a write-in candidate in a primary to obtain a party nomination. Finally, it would say that if a candidate is nominated by two parties, he or she could only choose one party label for the general election ballot. The Progressive Party is fighting this bill.

Wyoming: on January 31, HB 155 was killed in committee. It would have moved the independent candidate petition deadline from late August to early June, and required minor parties to have chosen their nominees in convention by 81 days before the primary.

On February 17, the Eighth Circuit issued an opinion in SD Voice and Heidelberger v Noem, 21-3195. It strikes down the petition deadline for statewide initiatives, which is one year before the election. The decision is by Judge L. Steven Grasz (a Trump appointee). It is also signed by Judges James B. Loken (a Bush Sr. appointee) and Raymond Gruender (a Bush Jr. appointee).

The opinion is unprecedented. Never before had a federal court struck down a petition deadline for initiatives. The panel relied on the First Amendment, and reasoned that because circulating an initiative is free speech, and because that deadline shut off opportunities for circulation, that the deadline is unconstitutional.

The opinion will be very useful if the legislatures of North Dakota and Missouri pass laws making it more difficult for initiatives to get on the ballot. Both states are in the Eighth Circuit.

Laboratories Against Democracy, How National Parties Transformed State Politics, by Jacob M. Grumbach, 2022, Princeton University Press. 261 pages.

The author is a Political Science professor. The book argues that some of the fundamental praise for federalism is out-of-date. For a century, scholars and thinkers have praised federalism, because, they say, states can experiment with new ideas that hadn’t been tried out in any other state before, and may hit upon useful new policies. The problem is that in our era, the two major parties are nationalized. Both of them have clear national policy agendas, and they tend to apply in every state. State legislators follow their own party’s national agenda.

So, they won’t experiment, especially if some of the ideas appear to have originated with the opposing major party. Blue states don’t respect ideas from red states, and vice versa. Also, powerful national groups with loyalty to the ideas of one or the other major party have great influence in state legislatures.

The book also argues that many state governments that are controlled by the Republican Party have passed laws that make elecdtions in their states less democratic.

Unfortunately, the evidence that it is Republicans who are injuring voting rights is based on a very arbitrary "State Democracy Index". The author gathered data for each state on Gerrymandering, automatic voter registration, district compactness, early voting, felony disenfranchisement, rejection rate for postal ballots, no-fault absentee voting, turnout, restrictions on voter registration, voter ID, voter wait times on election day, youth pre-registration.

But he gathered no data on the ability of candidates and parties to get on the ballot. He gathered no evidence about whether a state allows initiatives, which is odd considering that the book praises Florida for having the initiative process, which enabled Florida voters to repeal the blanket ban on ex-felon voting. And he has no data about whether a state’s ballot format is clear, or confusing. If he had included those, he would have found that sometimes it is Democratic legislators who pass bills that inhibit voting.

Most blue states do not have the statewide initiative process, and most red states do. The states with the worst ballot format are blue states. And in the last few years, bills to restrict ballot access have mostly been sponsored by Democrats, not Republicans. This is true this year in Minnesota, Nevada, New Mexico, and Vermont.

The author did not respond to me to talk about these points.

This chart has the minor party candidate for legislature who received the highest share of the vote, 1946-2000.

STATE	Year	Party	Candidate	Vote	Percentage
Alabama	1970	National Democratic	Thomas Reed	9,436	52.25%
Alaska	1980	Libertarian	Dick Randolph	11,163	55.01%
Arizona	1980	Libertarian	Jack Heald	3,113	37.08%
Arkansas	2012	Green	Fred Smith	2,905	100.00%
California	1999	Green	Audie Bock	14,674	50.55%
Colorado	2012	Libertarian	Tim Menger	13,951	40.96%
Connecticut	2015	Working Families	Ed Gomes	1,485	48.82%
Delaware	2014	Independent Party	Michael Tedesco	2,135	25.68%
Florida	2012	Independent Party	Nancy Argenziano	32,960	42.03%
Georgia	1994	Libertarian	Larry Bolin	2,503	31.91%
Hawaii	1994	Green	Toni Worst	3,571	40.73%
Idaho	1972	American	Werner Brammer	1,988	38.31%
Illinois	2012	Honesty & Integrity	James T. Meeks	22,434	40.05%
Indiana	2008	Libertarian	Rex Bell	8,374	33.49%
Iowa	2022	Libertarian	Sean Schriver	3,058	32.24%
Kansas	1948	Prohibition	J. W. Bathurst	1,309	35.97%
Kentucky	2020	Libertarian	Amanda Billings	8,157	21.58%
Louisiana	2019	Independent Party	Roy Daryl Adams	5,854	38.03%
Maine	2002	Green	John Eder	1,796	64.67%
Maryland	2002	Green	Linda Schade	10,101	40.86%
Massachusetts	2010	Green	Mark C. Miller	4,460	45.02%
Michigan	1996	Libertarian	Jon Coon	5,042	15.74%
Minnesota	2002	Independence	Sheila Kiscaden	12,388	41.62%
Mississippi	2015	Reform	Eli Jackson	1,784	13.18%
Missouri	1996	U.S. Taxpayers	Ray Rowland	18,582	36.91%
Montana	2006	Constitution	Rick Jore	2,045	55.45%
Nebraska	1988	New Alliance	Ernie Chambers	2,084	66.79%
Nevada	2000	Libertarian	James Dan	990	45.27%
New Hampshire	1994	Libertarian	Don Gorman	2,563	99.50%
New Jersey	1991	Populist	John L. Kucek	9,153	21.78%
New Mexico	1992	Green	Abraham Gutman	3,703	39.20%
New York	1986	Liberal	Albert Vann	8,511	63.59%
North Carolina	2016	Libertarian	William Meredith	24,672	25.57%
North Dakota	1976	American	Victor Krein	609	12.06%
Ohio	2014	Libertarian	Ryan McClain	9,143	28.03%
Oklahoma	1976	Libertarian	Porter Davis	2,867	36.35%
Oregon	2010	Independent Party	Jeff Caton	7,246	42.71%
Pennsylvania	2014	Libertarian	Betsy Summers	3,298	32.25%
Rhode Island	2020	Libertarian	William James Hunt	2,995	40.53%
South Carolina	2012	Libertarian	Jeremy C. Walters	5,243	47.06%
South Dakota	1982	Libertarian	Emmett Elrod	2,228	37.23%
Tennessee	1970	American	William J. Davis	12,659	58.27%
Texas	1992	La Raza Unida	Albert Pena	4,205	34.35%
Utah	2018	United Utah	Michele Weeks	5,577	39.05%
Vermont	2022	Progressive	Brian Cina	1,858	100.00%
Virginia	2011	Libertarian	Michael Kane	5,509	31.54%
Washington	2014	Libertarian	David A. Steenson	12,838	33.05%
West Virginia	2022	Americans Coming Together	S. Marshall Wilson	1,666	39.70%
Wisconsin	2010	Green	Ben Manski	7,762	31.11%
Wyoming	2020	Libertarian	Marshall A. Burt	1,696	54.41%

The chart below shows the petition requirements for independent candidates for U.S. Senate in each state in 2024. The motivation for carrying this chart was a recent NBC story about U.S. Senator Kyrsten Sinema, who has said she will run for re-election in 2024 as an independent. The story, by Ben Kamisar, a Political Unit staff writer, said that Sinema is fortunate that the Arizona petition requirement for independents "is a relatively low threshold as ballot access goes."

Actually, in 2024 only three states require more signatures than Arizona (Texas, North Carolina, and Georgia). The NBC story is very inaccurate; Arizona is tougher on independent candidates that almost any other state. The reporter was informed of this but he did not respond to my message.

States with easier requirements for a new party than for a US Senate independent candidate are Arizona, Delaware, Hawaii, Mississippi, Montana, New Mexico, North Carolina, and Vermont. The percentage is the number of signatures divided by that state’s 2020 presidential vote cast.

State	# of Sigs.	Percent	Code Reference	Formula
La.	0	.00%	Title 18, sec. 465C	pay filing fee
Alaska	0	.00%	15.25.010,15.25.030	pay fee, then place in top 4 in primary
Okla.	0	.00%	Title 26, 10-101	pay filing fee
Fla.	0	.00%	97.021	pay filing fee
Wash.	0	.00%	29A.24.091	pay fee, then place in top 2 in primary
Tenn.	25	.00+%	2-5-101	number stated in law
Hi.	25	.00+%	Title 2, sec. 12-6	number stated in law
Cal.	65	.00+%	Election code 8062	must place in top 2 in primary
N.J.	800	.02%	19:13-5	number stated in law
Nev.	250	.02%	Title 24, 293.200	number stated in law
Minn.	2,000	.06%	204B.08	number stated in law
Wis.	2,000	.06%	Title 2, sec. 8.20(4)	number stated in law
Pa.	5,000	.07%	Consti. Pty of Pa v Cortes	number in court settlement
Utah	1,000	.07%	20-3-38	number stated in law
Miss.	1,000	.08%	23-15-359	number stated in law
Ohio	5,000	.08%	3513.257	number stated in law
Idaho	1,000	.12%	34-708A	number stated in law
Vt.	500	.14%	Title 17, sec. 2402(b)	number stated in law
R.I.	1,000	.14%	17-4-7	number stated in law
Iowa	3,500	.21%	Title 4, sec. 45.1	number stated in law
Mich.	12,000	.22%	Graveline v Johnson	number from 2018 court order
Ky.	5,000	.23%	Title 10, sec. 118.315(2)	number stated in law
Colo.	8,000	.25%	1-4-802	1,000 signatures each US House dist.
Va.	10,000	.25%	24.2-543	number stated in law
Mass.	10,000	.28%	Chapter 53, sec. 6	number stated in law
No. D.	1,000	.28%	16.1-12-02	number stated in law
Md.	10,000	.33%	elec. law 5-703(e)	number stated in law
Mo.	10,000	.33%	Title 9, sec. 115.321	number stated in law
Ks.	5,000	.36%	25-303	number stated in law
N.H.	3,000	.37%	Title 4, sec. 655:42	number stated in law
S.C.	10,000	.40%	7-9-10	number stated in law
Ill.	25,000	.41%	10 ILCS 5/10-2	number stated in law
Ct.	7,500	.41%	9-453(d)	number stated in law
Neb.	4,000	.42%	32-620	number stated in law
Me.	4,000	.49%	Title 21, sec. 494.5	number stated in law
N.Y.	45,000	..52%	Chap. 17, sec. 6-142	number stated in law
Tx.	80,778	.71%	Elec. code 181.005	1% of 2022 gub. vote
Ark.	10,000	.82%	7-302(5)(B)	number stated in law
S.D.	3,502	.83%	12-7-1	1% of 2022 gub. vote
W.V.	7,790	.98%	3-5-23	1% of 2020 Senate vote
Ore.	23,744	1.00%	249.735	1% of 2020 pres. vote
Ind.	36,944	1.22%	3-8-6-3	2% of 2022 Sec. of State vote
Ariz.	(est.) 45,000	1.33%	16-341.E	3% of no. of registered indps.
Wyo.	3,879	1.40%	22-4-402(d)	2% of 2022 US House vote
Ga.	70,083	1.40%	21-2-170	1% of reg. voters as of Nov. 2022
No.C.	82,542	1.49%	163-122	1.5% of 2020 gub. vote
Del.	(est.) 7,550	1.50%	Title 15, sec. 3001	1% of reg voters as of Dec 2023
N.M.	14,246	1.54%	1-8-51	2% of 2022 gub. vote
Ala.	42,459	1.83%	17-9-3(a)(3)	3% of 2022 gub. vote
Mt.	16,659	2.76%	13-10-601	5% of winner’s vote Senate 2020

Starting in 2011, California has used a top-two system, in which every candidate runs in the primary, and the general election can only include the two candidates who received the two highest votes in the primary. No write-in space exists.

For the first time since top-two started, there is a competitive race in the Democratic Party for U.S. Senate. Incumbent Dianne Feinstein is not running for re-election. This will be California’s first U.S. Senate election without an incumbent running since before top-two started. Three Democratic members of the U.S. House have already declared for the 2024 primary: Adam Schiff, Barbara Lee, and Katie Porter. A fourth, Ro Khanna, may also run.

If there are four strong Democratic candidates, it is conceivable that they would split up the Democratic vote so much that two Republicans might place first or second in the primary. Possible strong Republican candidates are Brian Dahle and Mark Meuser, although neither has declared. Dahle is a State Senator and the Republican who ran for Governor in the 2022 general election. Meuser is an attorney who was the Republican who ran for U.S. Senate in the 2022 general election.

Georgia held a special election on January 31, to fill the vacancy in the State Senate, 11^th district. Percentages are: Republican 76.04%; Democratic 22.95%; Libertarian 1.02%. When this seat had last been up, in 2022, only a Republican had run.

The Libertarian, John Monds, was permitted to be on the ballot with no petition. Georgia requires petitions of 5% of the number of registered voters for minor party and independent candidates for the legislature in regular elections, but does not require anyone to submit a petition in special elections. Monds was the first minor party candidate on the ballot for Georgia State Senate since 2002.

Mississippi elects all its state officers in the odd year before presidential election years. The 2023 election has 17 Libertarian candidates for state legislature. That is the highest number any third party has run for Mississippi legislature since at least 1923, when the Socialist Party probably had a larger number.

The Libertarian Party had never before had more than four candidates for the Mississippi legislature in any one year. One factor that keeps the number of minor party candidates down is that Mississippi requires all qualified parties to nominate by primary (although no primary ballot is actually printed up if there are no primary contests), and the filing deadline for candidates to run in a party primary in these state elections is February 1, which is peculiar, because the primary is not until August.

The federal campaign law will allow individuals to give $3,300 to a federal candidate in 2024. The limit rises with inflation.