Honduras holds a presidential election on Sunday, November 24. As this Los Angeles Times story explains, a new party, the Free Party, could conceivably defeat both of the two older major parties, which are the Liberal Party and the National Party.
On December 10, Massachusetts holds a special election to fill the vacant U.S. House seat, 5th district. Here is the list of the four candidates: Democrat Katherine Clark, Republican Frank Addivinola, and independent candidates Jim Aulenti and James O. Hall. Aulenti’s ballot label is “independent” and Hall’s is “Justice Peace Security.”
Here is an article about Aulenti; here is one about Hall.
On November 22, Arizona officials filed this brief in the Ninth Circuit in Arizona Libertarian Party v Bennett, 13-16254. The issue is the state law that says only the two largest political parties should be listed on the voter registration form with a checkbox. If a voter wants to register into any other party, qualified or not, the voter must check the “other” box and write-in the choice, whether it is “independent” or the name of a party.
In Arizona, all qualified parties nominate by primary. In 2012, there were five qualified parties: Democratic, Republican, Libertarian, Green, and Americans Elect. Americans Elect is still on the ballot because it petitioned in 2012 and petitioning parties get the next two elections. The Green Party has gone off the ballot because it last petitioned in 2010 and so its two elections are used up. It expects to be on the 2014 ballot, and is currently circulating a petition for that purpose.
The state’s brief says that not listing the qualified minor parties is just a “miniscule” burden, and an “insignificant” burden. However, parties that have registration of at least two-thirds of 1% remain on the ballot indefinitely, no matter how few votes they poll. Therefore, not being listed on the voter registration form is a significant problem. Probably if the Green Party had been listed on the voter registration form, it would now have the needed 21,499 registrants to remain on the ballot.
The state’s brief says there have been 16 qualified minor parties on the ballot at one time or another in the last 38 years, but the truth is that there have been seven (Libertarian, Green, Reform, Natural Law, Americans Elect, Socialist Workers, and New Alliance). The reason the state made this error is that whoever wrote the brief didn’t notice that most of the allegedly qualified parties were not on the ballot, but were included in the election returns for president because they had write-in status.
The state’s brief says the state interest in listing only the Democratic and Republican Parties is its interest in “stability” and fostering “a healthy two-party system.” It is true that former Chief Justice William Rehnquist said in Timmons v Twin Cities Area New Party that Minnesota’s law banning fusion was justified by the need to encourage a “two-party system”. However, the dissent in Timmons correctly points out that Minnesota did not make that argument in its briefs, and that there was no evidence for Rehnquist’s assertion in the record. However, the Arizona recent brief erroneously says that Minnesota officials made the “two-party system” argument.
Hal Nickle has filed a proposed statewide initative measure. If it got on the ballot and passed, California would apportion electoral votes according to the share of the popular vote within California. If this measure had been in force in 2012, the California electoral vote would have been: Obama 34, Romney 20, Gary Johnson 1. Thanks to Rick Hasen for the link. UPDATE: as Jim Riley points out in his comment, the proposal does not round to the nearest whole integer. It rounds down. Thus if the proposal would have been in effect in 2012 in California, Gary Johnson would not have received any electoral votes.
On October 16, the Fifth Circuit agreed with the U.S. District Court, that a Texas campaign finance law is probably unconstitutional, and that it should be enjoined. The Texas law makes it illegal for a corporation to “make a political contribution or political expenditure that is not authorized by this subchapter.” The case is Texans for Free Enterprise v Texas Ethics Commission, 12-CA-0845.
The case had been filed by a non-profit corporation, which wanted to solicit donations from individuals and other corporations and use them to make independent expenditures for various candidates. The Fifth Circuit relied on Citizens United v Federal Election Commission to rule that the Texas law is probably unconstitutional.
In 2010, an individual had donated $600,000 to a corporation called Take Initiative America, which used that money to hire a paid petitioning company to get the Green Party on the ballot in Texas. The Democratic Party of Texas had then filed a lawsuit, arguing that the Texas law prohibiting corporations from spending money on political causes meant that the Green Party should be barred from the ballot, even though its petition was valid. A lower state court then ordered the Secretary of State not to let the Green Party certify any nominees. That case was Texas Democratic Party v Texas Green Party. However, the State Supreme Court then set aside the lower court order, and the Green Party did appear on the 2010 ballot. The Texas Green Party had argued that the statute did permit a corporation to make contributions to political parties for their normal operating expenses, and the dispute was whether petitioning to get on the ballot is a normal operating expense. Later, while the case was still unresolved, the same individual who had donated the $600,000 to get the Green Party on the ballot then paid $700,000 to the Texas Democratic Party, in return for which the Texas Democratic Party dropped its lawsuit.
In the future, it seems extremely likely that because the federal courts have enjoined the ban on corporate spending, if the 2010 experience were to be repeated, there would be no threat to the party that had submitted a ballot access petition.
