Many large newspapers in California are bemoaning the very low turnout in special U.S. House and legislative elections recently. Some newspapers are editorializing in favor of eliminating special elections for the legislature, and advocating that the Constitution be changed to let the Governor appoint legislators to fill vacant seats. See this Los Angeles Times editorial, and this Santa Rosa Press Democrat editorial.

The newspapers are correct that voter turnout in recent special elections has been low. Ever since the top-two rules were in force, starting in 2011, the median voter turnout in California special legislative and U.S. House elections has been 13.84%. The average has been 15.80%. There have been 19 special elections under top-two rules.

If one looks at special elections for U.S. House and legislature in the period just before top-two rules went into effect, one notes that the median turnout was 20.27% and the average turnout was 21.93%. That covers the special elections held in 2009 and 2010, and also the special election held January 4, 2011, because it was held under the old rules.

Thus, whether one uses the median turnout, or the average turnout, turnout is approximately one-third lower under the top-two rules than in the corresponding period of time before it went into effect. One reason for lower turnout is that top-two makes it impossible for minor party candidates to get into the run-off, if there is one. Under the old rules for special elections, which were blanket primary elections, the top vote-getter from each party went into the run-off, if there was one (and there usually was a run-off). This encouraged minor party members to run, because they could campaign for a longer period of time. Also, under the old rules, minor party members only needed 150 signatures to avoid paying the filing fee, but now they need either 3,000 or 1,500, depending on whether they are running for U.S. House/State Senate, or Assembly.

The new rules also discourage independent candidates. Under the old rules, they were always included in the run-off, if there was one. Also, under the old rules, they could have the word “independent” on the ballot; now they have the less-appealing “no party preference.” And under the old rules, write-in space was on the run-off ballot, but that is no longer true.

Minor parties sometimes did well in special elections, under the old rules. An American Independent Party nominee got 10.2% in the State Senate 37th run-off held June 8, 2010. A Peace & Freedom Party nominee got 8.45% in the State Senate 26th run-off held May 19, 2009. A Green got 6.2% in the Assembly 72nd run-off on January 12, 2010. A Libertarian got 5.2% in the US House 32nd run-off on July 14, 2009.

The calculations above do not include the two instances in which a special election was held simultaneously with a regularly-scheduled general election, because obviously the turnout for that special election was unusually high simply because it was held on a regular election day.

The Hawaii Attorney General has prepared a formal opinion that improves ballot access for the presidential nominees of unqualified parties. The opinion says that when an unqualified party uses the independent presidential petition procedure, the party label should be printed on the ballot, instead of just “non-partisan.”

The Hawaii independent presidential petition procedure has a September deadline, one of the latest deadlines of any state. Therefore, as a result of the decision, it can be said that Hawaii has a September petition deadline for unqualified parties to appear on the ballot, but for president and vice-president only.

As a result, Alabama now has the nation’s earliest petition deadline for a new or previously unqualified to qualify for the presidential ballot with the party label. This fact will be helpful to the Constitution, Green, and Libertarian Parties in their ongoing litigation against that Alabama March petition deadline. The case is pending in the Eleventh Circuit.

The New Mexico Supreme Court has declined to hear Constitution Party of New Mexico v Duran, 34431. Any Supreme Court is always free to decline to hear a case filed directly with that court. The decision not to hear the case is not a decision on the merits, and the case can be re-filed in a lower state court.

The issue is whether the Secretary of State of New Mexico was correct to remove the Constitution Party from the ballot. The New Mexico Supreme Court never ever learned that the Secretary of State’s brief, asking the Court not to take the case, has important factual errors. The state’s brief told the court that in the past, parties were always removed after just one election if they didn’t meet the vote test. This is not true. Furthermore, the state’s brief did not even quote the complete sentence in section 1-7-2 that describes when a party must be removed from the ballot. The state’s brief did not include the first half of the sentence, which starts out “If two successive general elections are held…”

The New Mexico Green Party is in the same situation as the Constitution Party. Both parties successfully petitioned in 2012, expecting they would get the next two elections, but so far they are both off the ballot for 2014.