U.S. DISTRICT COURT UPHOLDS ILLINOIS 5% PETITION FOR U.S. HOUSE INDEPENDENT CANDIDATES

JUSTIFICATION IS FEAR OF CROWDED BALLOTS

On September 11, U.S. District Court Judge Franklin U. Valderrama, a Trump appointee, upheld the Illinois petition requirement for independent candidates for U.S. House.  Sigcho Lopez v Illinois State Board of Elections, n.d., 1:26cv-9156.

The law requires the signatures of 5% of the last vote cast.  The same requirement applies to unqualified minor party candidates.

The plaintiff, Byron Sigcho Lopez, a Chicago city council member, needed 10,816 signatures, to be gathered in 90 days, due in May.  He submitted 17,227 raw signatures but was told that only 9,594 were valid.

His evidence showed that no petitioning candidate (neither minor party nor independent) had complied with that Illinois requirement, for U.S. House, since 1974, if they were challenged (in Illinois, if a candidate is not challenged, he or she is automatically put on the ballot as long as the submission is at least 10% of the requirement).  His evidence also showed that in the entire history of the United States, only three candidates for U.S. House in any state had ever overcome a requirement greater than 10,816; and all three of them had much longer petitioning periods.

Judge Valderrama seized on that fact and said that “in light of the fact that other House candidates across the country have obtained more than 10,754 signatures or nearly that amount, it does not strike the Court that no reasonably diligent candidate could collect this number of signatures. (page 32).”

Thus, because a candidate somewhere in the United States has succeeded in meeting such a requirement on the average of every 45 years, the opinion concludes that any “reasonably diligent candidate” should be able to do the same (ballot access laws in the U.S. began in 1888, and thus have been in existence for 138 years).  This is a peculiar interpretation of “a reasonably diligent candidate.”

The opinion also makes much of the fact that independent and minor party candidates for U.S. House do qualify sometimes in Illinois.  But that is because they aren’t challenged, and they can get on the ballot with only about 1,100 raw signatures (10% of the requirement).  Furthermore, until 2018, unchallenged candidates could get on the ballot even if that unchallenged candidate had only one signature.

Obviously, if no one challenges a candidate’s petition, that candidate is not considered a political threat to any other party or candidate.  Only candidates who are a threat get challenged.  This means, if one thinks about it, that the Illinois system discriminates against candidates with substantial support, relative to candidates without substantial support.

Sigcho Lopez was running in the Fourth District, which has a majority of Hispanic voters.  Another independent candidate, Chris Getty, petitioned in the Fourth district, but he does not have a Hispanic surname, and no one challenged him, so he is on the ballot.  Page seven of the opinion cites the fact that Getty will be on the ballot.

The State Interest

All judges considering the constitutionality of ballot access laws are instructed to determine the “precise” state interests for the restriction.  This is the teaching of the U.S. Supreme Court decision Anderson v Celebrezze.

Here are the state interests cited by the opinion:  “(1) limiting the number of candidates to avoid ballot overcrowding; (2) preserving the fairness and integrity of the electoral process; (3) avoiding confusion, deception, or frustration of the democratic process.”  The opinion does not elaborate on what each of them means.

It is apparent that avoiding overcrowded ballots is the only actual state interest.  There is no connection between the second so-called state interest and the actual issue.  “Fairness” and “integrity” have nothing to do with restricting the ballot.

As to the third cited state interest, which has three phrases, the first one, “avoiding confusion” is merely a restatement of the need to avoid overcrowded ballots.

The second, “deception”, has no relevance to ballot access restrictions.

The third, “frustration of the democratic process” refers to the argument that “spoilers” might cause the election outcome to be altered.  But this state interest can be satisfied with ranked choice voting.

The U.S. Supreme Court decision Jenness v Fortson, issued in 1971, is the source of the sentence about “confusion, deception, or frustration.”

One needs to read the transcript in Jenness to understand why “deception” ended up in the opinion.  At the oral argument, Chief Justice Warren Burger said he remembered that an independent candidate named George Norris had got on the ballot in Nebraska’s 1930 U.S. Senate election, at which incumbent Republican Senator George Norris was running for re-election.  The motive, Burger related, was to split the vote intended for the incumbent.  But Burger’s memory was faulty.  The incident occurred in the 1930 Republican primary, so it had nothing to do with independent candidates, and would have happened no matter what the Nebraska ballot access laws for independents had been in 1930.  There is nothing in any of the briefs in Jenness about deception, so obviously “deception” ended up in the opinion because of Burger’s offhand remark.

Nevertheless, the Jenness single sentence about the state interest in severe ballot access laws gets repeated endlessly.  It appears in the Sigcho Lopez opinion seven times!  That is because the opinion cites it almost every time it mentions a precedent from a lower court that quotes the same sentence.

That sentence in Jenness is the only sentence explaining the state interest in restrictive ballot access laws.  There is not another word about the subject; there is no elaboration.  It has been quoted in almost every unfavorable ballot access lower court decision for 56 years, literally hundreds of times, yet it never gets analyzed.

Crowded Ballots

The Sigcho Lopez decision does not define “crowded ballot”, but the U.S. Supreme Court, fortunately, has defined it.  In Lubin v Panish (1974), a unanimous opinion striking down mandatory candidate filing fees, the Court said a crowded ballot is one with one or two dozen candidates running for a single office.

It is clear that a 5% petition is not needed to avoid crowded ballots.

The Illinois 5% petition has existed since 1931.  Yet Illinois, in all the 95 years since, has never had a general election ballot with more than 4 candidates on the ballot for U.S. House, except that in 1996 the Seventh District had five candidates.  They were a Democrat, Republican, Libertarian, Natural Law nominee, and an independent.  The three non-major party candidates had each submitted a petition with a handful of signatures and were not challenged.

Furthermore, Illinois law says that in years ending in the digit “2”, the 5% petition is not in effect for U.S. House.  Instead all independent and minor party candidates need exactly 5,000 signatures.  Yet even in all the election years ending in “two”, such as 1952, 1962, etc., there has never been a U.S. House district race with more than four candidates.  It is obvious that if 5,000 signatures works to keep the ballot uncrowded, there is no state interest in requiring more signatures.

The reason that law exists is that after redistricting, it is tough for election officials to calculate what 5% of the last vote was inside a district that had not existed when the last election was held.  Having a fixed number, 5,000, saves a lot of calculation work.

The decision says Sigcho Lopez is free to file an amended complaint, so the decision is not yet final.  Sigcho Lopez will probably take advantage of the offer to amend his complaint to make it stronger.

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HEARING IN CALIFORNIA TOP-TWO LAWSUIT

The hearing in Peace & Freedom Party v Weber, n.d., 3:24cv-8308, the California lawsuit against the top-two system, has been moved from October 2 to October 23.  This is the lawsuit filed by four minor parties against the top-two system.  It is not yet known if the hearing will be virtual or in person.  It will be in San Francisco.

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PENNSYLVANIA GREEN PARTY WINS LAWSUIT FOR NAME PROTECTION

On September 4, the Pennsylvania Commonwealth Court issued a surprising decision in In re:  Nomination Papers of Andrew Tupone as the Green Party Candidate from the Seventh Congressional District, 366 M.D. 2026.  It says that the Green Party, which is not a qualified party in Pennsylvania, has the right to block someone from petitioning for the general election with the label “Green” if the candidate didn’t first get approval from the party to use its name.  The decision is surprisingly because there is no state law that provides such protection.

If the Green Party were a qualified party, the decision would have been less surprising.  But in November 2024, it did not poll enough votes to meet the state’s definition of a political party.  That definition requires any statewide candidate of the party to receive a number of votes equal to 2% of the vote received by the highest vote-getter’s total.  The party hadn’t met the vote test in 2022 either, but it did in 2020 (even when a party becomes a “party”, it is not on the ballot unless it has registration of 15%).

Andrew Tupone collected 10,000 signatures for U.S. House, 7^th district.  He collected far more signatures than he needed.  But the Green Party did not recognize him as a nominee.  He had only been registered as a Green since April 2026 and had previously been a Republican.  At the trial, he said he had made one phone call to the Green Party to talk about getting its support but had not heard back.  He also did not seek to help the Green Party get its gubernatorial nominee on the ballot.  He could have listed the gubernatorial candidate’s name on his own petition and thereby helped the party to qualify for Governor.

On September 17, the State Supreme Court affirmed the decision, and said it would explain later.  56MAP 2026.

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BOOK REVIEW:  PARLIAMENTARY AMERICA

By Bill Redpath

Parliamentary America:  The Least Radical Means of Radically Repairing Our Broken System, by Maxwell Stearns, 2024.

University of Maryland law professor Maxwell L. Stearns presents a mighty bold plan that he asserts is “the least radical means of radically repairing our broken democracy.”

The book has four parts. The first part contains four chapters in which he lays out the indictment against the current system. The second part reviews election structures from seven nations, in which he identifies what he thinks are the strengths and weaknesses of their democracies. The last two parts propose three amendments to the US Constitution that he thinks will “fix our broken system,” and how he thinks these amendments can pass Congress and three-quarters of state legislatures.

Two of the three constitutional amendments Mr. Stearns proposes affect the elections of the US House of Representatives and the President and Vice President. The third amendment allows the US House to remove the President with a 60% No Confidence vote.

In the first proposed amendment, the US House would double in size, going from 435 to 870 members. Each state’s delegation size would double, but the number of districts would stay the same. A Mixed Member Proportional voting system would be implemented. Each voter would receive two ballots: one to elect the individual to represent their district and a ballot to vote for their favorite party. The party list results alone would be used to allocate the seats among parties within each state’s delegation, with half of the delegation appointed by political parties.

A party would have to receive at least 5% of the vote to receive any party list seats. In this process, Stearns beliefs five to eight effective political parties will emerge, which he thinks, based on the analysis of other democracies, is the right range of the number of parties for the most effective democracy.

After each US House election, the party with the most US House seats, if it doesn’t itself have a majority of seats, would try to form a coalition with other parties that would include a majority of the 870 seats. After the election in every Leap Year, the majority party or majority coalition would then appoint the President and Vice President. That presidential ticket would have a four year term and the line of presidential succession would not change. I think this would be the most controversial of the proposed three amendments.

The third proposed amendment would allow for removal of the President with a 60% vote of No Confidence in the US House. This could not be used for ordinary political purposes but would have to be based on specific charges of maladministration of federal resources, lying to the public, or causing international embarrassment for the US. (Not that we’ve ever had a President do any of that.) Criminal conduct would not be necessary for these charges. A President who was removed from office using this process could run for President in the future.

The process of impeachment of the President in the House and permanent removal from that office by the US Senate would still be available.

I suppose not all issues regarding these proposed changes can be addressed in a single book, but one matter Mr. Stearns does not address is how it is decided which political parties are listed on the party ballot in each state. In states that currently recognize only the Democratic and Republican parties, would only those two parties be on the party list ballot for US House? That won’t lead to a multiparty system, unless there is some additional reform.

I agree that the proposed changes would make the US a better functioning democracy. I think a multiparty system would take the edge off the divisiveness inflicted by the “two party system.” Mr. Stearns asserts that having more than two parties elected through a party list ballot would place more focus on political ideas and philosophies and less on individual candidates.

Mr. Stearns admits that it will take an informed electorate to bring forth these changes. That’s the biggest fly in this ointment. I think very few people know that other democracies around the world operate quite differently than in the United States. I also cannot believe that the American people are open to the idea of them not voting on whom to elect President.

Nonetheless, I think Maxwell Stearns makes a more than admirable effort in this book to improve the democracy of this nation. We need this and other venturous ideas circulating to improve both public policy processes and outcomes for the United States.

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MASSACHUSETTS  TOP-TWO INITIATIVE

Massachusetts voters will vote in November on a top-two system.  The measure is on the ballot as Question Three.  A poll in August showed it winning easily, but a poll released on September 24 shows that it is almost tied:  41% in favor, 39% opposed, 19% undecided.

The website for the proponents is yeson3mass.com.  Websites opposed are votenoon3mass.com, and progressivemass.com.

Around the nation, top-two has passed in two instances, and been defeated in seven instances.  It passed in Washington in 2004 and in California in 2010.  Its losses were California 2004, Oregon 2008, Arizona 2012, Oregon again 2014, South Dakota 2016, Florida 2020, and South Dakota again 2024.

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TENTH CIRCUIT WON’T PUT FORWARD PARTY ON IN NEW MEXICO

On September 15, two judges of the Tenth Circuit agreed with the lower court and refused to put the Forward Party’s statewide nominees on the New Mexico ballot.  New Mexico Forward Party v Toulouse Oliver, 26-2145.

The party completed one petition earlier this year to become ballot-qualified.  But New Mexico law, unlike that of any other state, requires the nominees of a qualified party that nominates by convention to submit their own separate petitions after they are nominated.  The Forward Party’s statewide nominees each needed 14,246 signatures by June, and they were unable to collect those signatures.

The Tenth Circuit did not explain its reasoning.  It is not known why only two judges were on the appeal; generally a U.S. Court of Appeals makes all decisions with three judges.  The two judges were Nancy Moritz, an Obama appointee; and Veronica Rossman, a Biden appointee.

This outcome was surprising, because the New Mexico Attorney General, Raul Torrez, a Democrat, had submitted an amicus curiae brief to the Tenth Circuit, arguing on the Forward Party’s side, and making an argument that the law is unduly burdensome.  The Tenth Circuit Judges appeared displeased with the amicus, and wrote that it should not have been filed.

The Forward Party immediately asked the U.S. Supreme Court to reverse the decision, but late on September 17, Justice Neil Gorsuch denied the request.  He is the Justice in charge of emergency motions from the Tenth Circuit.

The case is still alive and future proceedings will decide the constitutional issue.

This lawsuit is the first constitutional ballot access case ever filed by the Forward Party in any state.

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OTHER LAWSUIT NEWS

Colorado:  on September 4, a state trial court put the Libertarian nominee for Secretary of State on the ballot.  Vadney v Griswold, Denver District Court, 2026cv-33176.

The original Libertarian nominee had withdrawn on August 26.  The party replaced him on August 29, but that was one day too late.  However, the judge said that Colorado has a policy of liberal construction of election laws.  He also found that no harm would come to the state if the replacement were allowed.

Kansas:  on September 9, the State Supreme Court said it did not wish to immediately hear the case brought by the No Labels Party over its exclusion from the 2026 ballot.  The Court said the lower court should hear the case first, but the election is so close in time that the party can’t be on the 2026 ballot.  The Secretary of State had excluded it at the request of the party’s original 2024 officers.  The party held a state convention in 2026 and elected new officers, but the Secretary of State did not recognize the new officers.

Pennsylvania:   on September 4, a Commonwealth Court kept Christopher Gambino on the ballot as the Forward Independent Party nominee for State House, 143rd district.  In re Nomination Papers of Christopher Gambino as Forward Independent Candidate for the 143^rd Legislative District, 364 M.D. 2026.  His petition had been challenged on the grounds that his ballot label, “Forward Independent”, was too similar to the ballot label of another candidate in another district, “Independent.”  The judge ruled that the law regarding similar partisan labels has no bearing on this case, because the two candidates aren’t running in the same election.  On September 17, the State Supreme Court affirmed the decision.  55 MAP 2026.  The challenge had been brought by the Democratic Party.

South Carolina:  the Republican Party is currently suing in federal court for the right to have a closed primary for itself.  On September 16, the judge ordered both sides to submit to the mediation process.  South Carolina Republican Party v Bolchoz, 3:26cv-2699.  The process starts October 6 and must be finished by June 1, 2027.  This is really the judge’s attempt to let the legislature settle the problem, because mediation really doesn’t work in cases on the constitutionality of election laws.

Texas:  on September 18, U.S. District Court Judge Matthew Kacsmaryk stayed all proceedings in Hunt v State of Texas, n.d., 2:25cv-200, until June 2027.  This is the lawsuit in which the Texas Republican Party is seeking a closed primary for itself.  Neither side had asked the judge to do this.  The judge said he wants the legislature to decide the issue.  Bills to let the Republican Party close its primary have repeatedly failed in past sessions of the legislature.

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CAN ELECTIONS BE PREDICTED BY HOW MANY CANDIDATES RUN?

In every congressional election, there is variation in how many nominees each major party runs for U.S. House.  This year there are more Democratic nominees than Republcan nomineees.  A question has arisen:  is it possible to predict which major party will win control of the House based on how many nominees each party runs?

The answer is that the method is not surefire.  Between 1994 and 2024, this prediction idea failed in three elections:  2000, 2014, and 2016.  In all three elections, Democrats had the most nominees, but Republicans won a majority of seats.

In years of the 20^th century earlier than 1994, Democrats always ran more nominees than Republicans did, because the Republican Party was so weak in the South.

LEGISLATIVE CANDIDATES ON THE BALLOT, NOVEMBER 2026

	# seats	Dem.	Rep.	Lib’t.	Green	Consti	Forwar	other(1)	other(2)	indp.
Ala	140	73	114	0	0	0	0	0	0	4
Alas	50	32	39	1	0	0	0	0	0	29
Ariz	90	81	73	0	3	0	0	3	0	1
Ark	117	53	101	4	0	0	0	0	0	2
Cal	100	93	85	1	2	0	0	1	0	1
Colo	86	80	76	15	0	0	1	2	1	2
Ct	186	181	146	0	1	0	0	4	3	3
Del	52	46	30	0	0	0	0	3	0	0
Fla	141	128	121	2	0	1	0	1	1	8
Ga	236	207	185	0	0	0	0	0	0	3
Hi	66	64	34	1	2	0	0	0	0	1
Id	105	90	102	1	0	3	0	0	0	8
Ill	157	126	110	0	0	0	0	0	0	0
Ind	149	146	129	5	0	0	0	0	0	3
Iowa	125	105	96	0	0	0	0	0	0	6
Kan	107	85	87	4	0	0	0	0	0	2
Ky	169	116	160	0	1	0	0	0	0	1
Maine	186	168	150	0	0	0	0	0	0	27
Md	188	187	98	0	1	0	0	2	0	1
Mass	200	186	58	0	0	0	0	2	0	14
Mich	148	148	148	12	8	4	0	6	0	3
Minn.	201	201	184	0	1	0	1	0	0	3
Mo	180	177	147	11	0	0	0	0	0	2
Mont	125	116	114	4	0	0	0	0	0	1
Nev	53	48	42	3	0	1	0	0	0	2
NH	424	381	351	0	0	0	0	1	0	10
NM	71	55	49	0	0	0	0	0	0	2
NY	213	205	151	0	0	0	0	8	1	8
NoC	170	161	137	15	2	0	0	0	0	1
NoD	72	55	65	0	0	0	0	0	0	3
Ohio	116	113	110	9	0	0	0	0	0	7
Okla	126	87	107	1	0	0	0	0	0	6
Ore	75	70	64	5	2	0	0	3	0	1
Pa	228	212	174	0	2	0	1	0	0	4
R I	113	105	29	0	0	0	0	0	0	9
So C	124	124	105	5	0	0	0	3	1	0
So D	105	44	104	1	0	0	0	0	0	11
Tenn	116	86	95	0	0	0	0	0	0	14
Tex	167	167	148	3	3	0	0	0	0	0
Utah	90	78	86	0	0	6	16	0	0	3
Vt	180	144	129	0	0	0	0	8	2	12
Wash	122	109	86	2	0	0	0	1	0	8
W Va	119	109	111	5	5	9	0	0	0	7
Wis	116	107	112	0	2	0	0	1	0	7
Wyo	79	30	76	4	0	3	0	0	0	1
TOTAL	6183	5379	4918	114	35	27	19	49	9	241

Parties in the “other(1)” column are:  Az., No Labels; Cal., Peace & Freedom; Co., Center; Ct., Independent Party; Del., Independent Party; Fl., American Solidarity; Md., Working Class; Mass., Workers; Mich., Working Class; N.H., Classic Liberal; N.Y., Conservative; Ore., Independent Party; S.C., United Citizens; Vt., Progressive; Wa., Cascade; Wis., American Solidarity.  Parties in the “other(2)” column are:  Co., Unity; Ct., 2 New Movement and 1 Yankee National; Fl., MGT; N.Y., Working Families; S.C., Workers; Vt., Green Mountain Peace & Justice.

The Green Party entry for Kentucky is for the Kentucky Party, which for two years has been functioning as the Green Party affiliate (in 2024, it nominated Jill Stein for president).

Parties that have more nominees for state legislature in 2026 than they did in 2024, and which had at least ten candidates, are the Democratic, Republican, Green, Constitution, and Forward Parties.  Those parties had this number of candidates in 2024:  Democratic 4,647, Republican 4,694, Green 21, Constitution 10, and Forward 7. The number of independent candidates this year also increased; the number in 2024 was 170.

For candidates who were nominated by two parties, they are only counted for the party of which the candidate is a member.  No one is counted twice.  States with fusion nominees are Connecticut, New York, Pennsylvania, and Vermont.

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CHANGES TO U.S. HOUSE CANDIDATES

The Sep. 1, 2026 B.A.N. had a chart showing the number of U.S. House candidates in each state by party.  But since that issue appeared, the number of candidates has shrunk.  The South Carolina Forward Party nominee withdrew because he was disappointed that he hadn’t raised enough money to be competitive.  One of the two Pennsylvania Green nominees was ruled off the ballot (see page 2).    One of the Ohio Libertarians withdrew.  Also, the September issue entry for Oregon for the Forward Party erroneously showed two; the correct number was zero.

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CALIFORNIA REPUBLICAN CHANGES HIS REGISTRATION TO INDEPENDENT

On September 18, Bob Smith, the Republican candidate for California’s 24^th U.S. House district, said that he had changed his registration to independent.  However, the ballot will continue to list him as a Republican.  California law says that a candidate’s partisan label in the general election must match whatever label was used in the primary.  Smith is the only opponent to the Democratic incumbent.