|This issue was originally printed on gray paper.|
On June 11, the first lawsuit ever filed on presidential substitution was filed by the Libertarian Party, against Florida. Libertarian Party of Florida v Mortham, no. 96-cv-258-MMP, northern district. The case was assigned to Judge Maurice Paul, who has a good record on ballot access.
On June 21, the Reform Party made arrangements with the Libertarian Party's attorney for the Reform Party to join the lawsuit.
This is probably the most important ballot access lawsuit to be filed in 1996. At stake is the right of third political parties to decide whom to nominate for president, during the summer of a presidential election year. If this case cannot be won, it will mean that in the future, third parties will be forced to make a final decision as to whom to run for president, as early as January of an election year.
Every state has some procedure by which a new political party may qualify for the ballot, before it has chosen its presidential candidate. However, in some states, that procedure is so difficult, it never gets used. In Florida, any party capable of submitting 196,788 valid signatures, collected between mid-January and mid-July, is able to enjoy the flexibility of choosing its presidential candidate in the summer of the election year. But this is an almost meaningless option, since no third party has the ability to achieve this goal. With only one exception, no third party or independent candidate has ever overcome a ballot access hurdle greater than 134,781 signatures.
Florida has an easier procedure for third parties to place a presidential candidate on the ballot -- requiring 65,596 signatures -- but this easier procedure requires that the party know who its candidate will be, before the petition can begin, since the name of the candidate must be printed on the petition and cannot be changed later.
Earlier this year, the Florida Senate passed a bill which would have fixed the problem, but the legislature adjourned before the House could vote on it.
Florida already lost a similar case, for vice-president, in federal court in 1980. Anderson v Firestone said that the Constitution protects the right of independent petitioning groups to show a vice-presidential stand-in on the petition, and later name the real vice-presidential candidate.
If the Libertarian Party fails to win this case, Ed Clark (the party's stand-in for president) will be printed on the November ballot in Florida, even though he is not an actual candidate. Since the state has an interest in preventing voter confusion, it is difficult to imagine how the state will justify its refusal to permit the Libertarian Party to let Clark withdraw in favor of the actual presidential candidate, who is to be chosen July 6 at the party's national convention.
The Reform Party used Ross Perot as its stand-in. If the party ultimately nominates Perot, no harm will be done to the Reform Party. However, if the Reform Party chooses someone else for president, such as former Colorado Governor Richard Lamm, it also needs a victory in this lawsuit.
(See also this update.)
On May 20, U.S. District Court Judge Jackson L. Kiser ruled that Virginia's mid-June petition deadline, for third party and independent candidates other than president, is too early. Wood v Meadows, civ. 94-0047-D, western dist. Judge Kiser is a Reagan appointee. The injunction only extends to candidates for the U.S. Senate.
The case was won by an independent Green candidate for the U.S. Senate, George "Tex" Wood, who is not an attorney but who represented himself. The state is appealing.
On June 14, SB 7856 was introduced in the New York State Senate. It passed the Senate only three days later. It abolishes the requirement that petitions carry the precinct number and legislative district number of each signer. It also provides that if a petition is held invalid for any reason, the circulators have three days to correct deficiencies.
Both houses of the New York legislature are now in recess. The Assembly will consider the bill during the week of July 1-5.
The bill passed the Senate so quickly because Governor George Pataki, a Republican, decided that he wanted ballot access reform. The Senate is controlled by the Republicans, so the bill moved quickly there. The Assembly is Democratic and has passed similar reform bills previously.
On June 6, U.S. District Court Judge Robert Broomfield, a Reagan appointee, refused to issue an injunction against the Arizona May 18 petition deadline for new parties. Independent American Party of Az. v Hull, no. cv96-1240 PHX RCB. The case was filed by the Arizona unit of the U.S. Taxpayers Party.
Arizona requires all new political parties to nominate by primary. Judge Broomfield wrote that election administrators must have the petitions in 115 days before the primary, in order to have time to prepare for the new party's primary. However, it doesn't seem to have occurred to him that a new party which only wishes to run a candidate for president, doesn't need to participate in the September primary, since that primary has nothing to do with presidential elections. The party plans to appeal.
On June 3, the 5th circuit released an opinion in Texas Independent Party v Kirk, 95-50172. It strikes down a Texas law which says that independent candidate petitions must carry the voter registration affidavit number of every voter who signs.
Unfortunately, it upholds a Texas law which says that new party and independent candidates (except presidential candidates) must file a declaration of candidacy the first week of January.
Also unfortunately, it upholds the May petition deadlines for new parties and independent candidates, at least for office other than president. The ruling is ambiguous concerning the deadline, if a presidential candidate is involved. The decision was written by Judge Fortunado Benavides, a Clinton appointee, and signed by Judges Edith Jones and E. Grady Jolly, Reagan appointees.
The case had been filed in 1994 by several independent candidates, and by the Texas Independent Party, which is the Texas affiliate of the Patriot Party. The party in Texas in 1994 didn't seriously try to get on the ballot. In retrospect, it probably would have been better if the party had not been in the lawsuit, since the outcome might have been better if the case had been filed by a party which actually did complete the petition.
It is truly absurd that a new party, which might not even exist in January of an election year, could potentially qualify by submitting a petition (which, under Texas law, is to be circulated between March and May of an election year), get on the ballot, but be left with no candidates except a presidential candidate. This could happen, because the law, which was upheld, requires all candidates (even candidates of a party which doesn't exist yet) to file a declaration of candidacy by January 2 or 3 of an election year.
It is obvious that Texas has no legitimate reason to force new party candidates to file a declaration of candidacy before the party may even exist, because no other state has such a requirement. There is no reason for this law except to stifle competition.
The judges claimed the law is non-discriminatory, a claim which reminds one of the famous old quote that an 18th century French law, "in its majesty, forbids both the rich and the poor from sleeping under bridges". The impact of telling a Republican or a Democratic candidate that he or she must file a declaration of candidacy in January, is trivial, since everyone knows that Democrats and Republicans in Texas nominate candidates at a primary in March. The impact on the candidate of a new party, which nominates by convention and which may not even exist in January, is entirely different.
A South Carolina law almost identical to the Texas declaration of candidacy law was held unconstitutional by the 4th circuit in 1990, but the Texas panel didn't mention the South Carolina decision.
The section of the opinion upholding the May petition deadlines fails to identify any state interest whatever in the early deadline. It merely says that since it is constitutional for the state to limit petitioning to 75 days, and since the state permits petitioning to start in March, therefore May must be O.K. It distinguishes Anderson v Celebrezze by saying that Anderson v Celebrezze only applies to presidential candidates. Courts, in Alabama, Georgia, Hawaii, Idaho, Indiana, Kentucky, Massachusetts, Maine, Nevada, Ohio, Pennsylvania, South Carolina, Virginia and Wyoming have come to the opposite conclusion, but the 5th circuit didn't mention any of the contrary decisions.
Despite the deficiencies in the opinion, no appeal to the U.S. Supreme Court is planned. It is possible that a new lawsuit on the same points could win, notwithstanding this loss, if the plaintiff party were a party which had submitted enough signatures to be on the ballot. Sometimes a law can be adjudged constitutional "on its face" but not "as applied".
The portion of the case which won, striking down the law which required independent candidate petitions to carry the voter registration affidavit number for each signer, was welcome, but no surprise.
An identical requirement for minor party petitions had been declared unconstitutional by the 5th circuit in 1988. There had never been any rational basis for Texas to continue to enforce the law for independent candidate petitions, and not new party petitions.
On June 3, the 4th circuit voted 2-1 that West Virginia's May petition deadline for non-presidential third party and independent candidates is valid. Fishbeck v Hechler, 95-1951. The decision was written by Judge Donald Russell, a Nixon appointee, and co-signed by Judge M. Blane Michael, a Clinton appointee. The dissent, which was considerably longer than the majority decision, was by Robert Payne, a Bush appointee.
The majority had a difficult time upholding the deadline, because a 1977 U.S. Supreme Court decision, Mandel v Bradley, says that early petition deadlines for third party and independent candidates are generally unconstitutional if almost no third party or independent candidates ever qualify. During the last 55 years, there has been only one third party or independent candidate on the West Virginia ballot for Governor, only one on for U.S. House of Representatives, and only two for U.S. Senate.
However, the majority blithely stated that since there were three third parties on the ballot back in 1932 and also in 1936, therefore the historical record shows that the law is valid. No appeal to the Supreme Court is planned. The case had been filed by the Libertarian Party in 1992.
On June 27, there is a hearing in U.S. District Court, over the deadline for a new party to submit a petition in Wyoming. The Labor Party of Wyoming, which is supports Ralph Nader for president, argues that the May 1 deadline is unconstitutional. New parties in Wyoming nominate by convention, so there is no election-administration reason for the deadline to be so early. Spiegel v State of Wyoming, 96cv-1028B.
1. Arkansas: the Reform Party's lawsuit against the January petition deadline for new parties will not have a hearing until late July. In the meantime, the Arkansas Supreme Court will decide if the deadline really is in January, or in May. The election code contradicts itself; one section says the deadline is in January and another says May.
2. Florida: a Democratic candidate for Congress filed a lawsuit against the $10,200 filing fee for Congress in federal court. Green v Mortham, 96-1143-cv-T-23A. However, since the candidate paid the fee, it is very likely that the case will be moot.
3. Georgia: the 11th circuit denied a rehearing in Chandler v Miller, 95-8230, on April 18. This is the case over mandatory drug tests for candidates. Plaintiffs are appealing to the U.S. Supreme Court.
4. Maryland: On June 24, the U.S. Supreme Court refused to hear Cane v Worcester County, 95-270. This is the case in which the U.S. District Court, back in 1994, had ordered Worcester County to elect county commissioners by proportional representation, an order which the 4th circuit overturned. The 4th circuit had ordered the county (which has always elected its county commissioners at-large) to divide itself into five districts, so that at least one district would have a black majority. This plan will now be implemented.
5. New York: on May 13, the U.S. Supreme Court refused to hear the Republican Party's appeal in Rockefeller v Powers, the case over ballot access rules for the Republican presidential primary. The lower courts had found the rules too restrictive, but the state party wished to keep them.
6. Ohio: on May 29, a 3-judge U.S. District Court upheld Ohio's congressional district boundaries. Former Congressman Clarence Miller had sued, arguing that the districts represented an unconstitutional political gerrymander. Miller v State of Ohio, c2:94-1116. Miller will appeal to the U.S. Supreme Court.
7. Texas: there will be a hearing on June 27 in federal court in Austin, over the U.S. Taxpayers Party's lawsuit against the May petition deadline for new parties, in presidential elections. National Committee of US Taxpayers Party v Garza II, A96ca-354-SS. The case is assigned to Judge Sam Sparks, a Bush appointee. It is possible that the party submitted enough signatures by the legal deadline to qualify; the state is expected to release this information just before the hearing. Obviously, if the party turned in enough by the deadline, the case will be dismissed.
The May 28 B.A.N. carried presidential primary results for most April and May primaries. Below are April and May results which weren't available then, plus June results.
See this note about tables.
See this note about tables.
|Mary Cal Hollis||391||26.98|
See this note about tables.
See this note about tables.
|FULL PARTY||CAND.||LIBT||REFORM||NATL LAW||TAXPAYR||PARTY||CAND.|
|Alabama||36,060||5,000||already on||6,000||finished||*lacks 700||Jul 1||Aug 30|
|Alaska||2,586||#2,586||already on||*1,000||finished||already on||in doubt||in doubt|
|Arizona||15,062||#7,813||already on||*already on||*finished||*in court||May 18||Jun 27|
|Arkansas||21,506||#0||0||in court||already on||already on||Jan 2||Sep 15|
|California||(reg) 89,007||147,238||already on||already on||already on||already on||Oct 24 95||Aug 9|
|Colorado||no procedure||#0||0||*2,000||already on||already on||--||Jul 16|
|Connecticut||no procedure||#7,500||*7,600||*5,000||*2,000||*5,100||--||Aug 7|
|Delaware||(reg.) 191||3,828||already on||(reg) *40||(reg) 150||(reg) 180||Aug 17||Jul 15|
|D.C.||no procedure||(es) #3,500||0||0||0||0||--||Aug 20|
|Florida||196,788||#65,596||*finished||*finished||2,000||0||Jul 16||Jul 15|
|Georgia||30,036||#31,771||already on||*35,000||*15,000||*2,000||Jul 9||Jul 9|
|Hawaii||4,889||#3,829||already on||*800||already on||0||Apr 24||Sep 6|
|Idaho||9,644||4,822||already on||*3,000||*4,000||600||Aug 31||Aug 26|
|Illinois||no procedure||#25,000||already on||*16,000||*2,000||*7,500||--||Aug 5|
|Indiana||no procedure||#29,822||already on||*24,000||0||0||--||Jul 15|
|Iowa||no procedure||#1,500||100||*1,000||*1,800||*finished||--||Aug 16|
|Kansas||16,418||5,000||already on||*already on||*2,500||*already on||Jun 1||Aug 5|
|Kentucky||no procedure||#5,000||5,000||*4,000||*4,000||*5,000||--||Aug 29|
|Louisiana||(reg) 111,121||#0||0||0||0||0||Jun 30||Aug 29|
|Maine||(reg) 25,565||#4,000||already on||already on||*already on||*already on||De 14 95||May 24|
|Maryland||10,000||72,785||already on||*11,000||8,000||already on||Aug 5||Aug 5|
|Massachsts.||(reg) 31,661||#10,000||already on||*3,000||*7,000||*6,300||Feb 14||Jul 30|
|Michigan||30,891||30,891||already on||*30,000||*25,000||*2,200||Jul 18||Jul 18|
|Minnesota||89,731||#2,000||can't start||already on||can't start||can't start||May 1||Sep 10|
|Mississippi||just be org.||#1,000||already on||*300||already on||already on||Sep 6||Sep 6|
|Missouri||10,000||10,000||already on||*8,000||*7,000||*12,500||Jul 29||Jul 29|
|Montana||10,471||#10,471||already on||already on||already on||*700||Mar 14||Jul 31|
|Nebraska||5,773||2,500||already on||*7,000||*already on||*500||Aug 1||Aug 27|
|Nevada||3,761||3,761||already on||*4,500||already on||already on||Jul 11||Jul 11|
|New Hampshire||9,584||#3,000||already on||*1,000||*200||*4,000||Aug 9||Aug 7|
|New Jersey||no procedure||#800||0||finished||finished||finished||--||Jul 29|
|New Mexico||2,339||14,029||already on||already on||already on||already on||Apr 2||Sep 10|
|New York||no procedure||#15,000||can't start||probably on||can't start||can't start||--||Aug 20|
|North Carolina||51,904||80,684||*already on||*already on||*already on||1,700||May 16||Jun 28|
|North Dakota||7,000||4,000||already on||already on||already on||already on||De 29 95||Sep 6|
|Ohio||33,463||5,000||400||already on||already on||finished||Aug 22||Aug 22|
|Oklahoma||49,751||#41,711||*already on||*already on||0||*in court||May 31||Jul 15|
|Oregon||18,316||14,601||already on||*already on||*2,500||0||*Aug 1||Aug 27|
|Pennsylvania||no procedure||#24,425||*12,500||*14,000||*2,000||*8,000||--||Aug 1|
|Rhode Island||18,069||#1,000||0||0||0||0||Aug 1||Sep 6|
|South Carolina||10,000||10,000||already on||already on||finished||already on||May 5||Aug 1|
|South Dakota||7,792||#3,117||already on||already on (independent)||200||*already on||Apr 2||Aug 6|
|Tennessee||37,179||25||*already on||already on (independent)||*already on||*finished||Apr 3||Aug 20|
|Texas||43,963||61,541||already on||*already on (independent)||finished||*finished||May 27||May 13|
|Utah||500||#300||already on||already on||already on||already on||Mar 1||Sep 1|
|Vermont||just be org.||#1,000||already on||*400||already on||*finished||Sep 19||Sep 19|
|Virginia||no procedure||#15,168||*8,000||already on||*6,000||*2,300||--||Aug 23|
|Washington||no procedure||#200||can't start||can't start||can't start||can't start||--||Jul 6|
|West Virginia||no procedure||#6,837||finished||*5,000||*500||0||--||Aug 1|
|Wisconsin||10,000||#2,000||already on||*already on||0||already on||Jun 1||Sep 3|
|Wyoming||8,000||9,810||already on||*finished (independent)||already on||0||May 1||Aug 25|
|TOTAL STATES ON FOR PRESIDENT||34||18||17||15|
"FULL PARTY REQ." is a procedure by which a new party can qualify before it chooses candidates; not every state has such a procedure. * -- entry changed since last issue. # -- label: candidate procedure in these states lets candidate choose a party label, which is printed on the ballot. In Colorado, the Reform Party is collecting 5,000 signatures rather than paying $500.
See this note about tables.
|GREEN||WKR WRLD||COLLINS||SOCIALIST||SOC WKR||AIDS CURE||GRASSR||SOC EQUAL|
|Arizona||*6,000||*too late||*too late||*too late||*too late||*too late||*too late||*too late|
|California||already on||maybe on||*4,500||0||0||0||0||0|
|Delaware||(reg.) 7||0||0||0||(reg) 3||(reg) 5||0||0|
|Maine||already on||too late||too late||too late||too late||too late||too late||too late|
|Minnesota||can't start||can't start||can't start||can't start||can't start||can't start||can't start||can't start|
|New Mexico||already on||0||0||0||0||0||0||0|
|New York||can't start||can't start||can't start||can't start||can't start||can't start||can't start||can't start|
|North Carolina||*too late||*too late||*too late||*too late||*too late||*too late||*too late||*too late|
|Oregon||already on||0||0||already on||0||0||0||0|
|Texas||too late||too late||too late||too late||too late||too late||too late||too late|
|Vermont||0||0||0||already on||0||0||already on||0|
|Washington||can't start||can't start||can't start||can't start||can't start||can't start||can't start||can't start|
|Wisconsin||can't start||can't start||can't start||can't start||can't start||can't start||can't start||can't start|
American is on in Utah. Prohibition is on in Tennessee and has 200 in Utah. * -- entry changed since last issue. Green column includes all parties which support Ralph Nader, including Pacific in Oregon and Labor in Wyoming. "Can't start" entry in Minnesota & Wisconsin in this table refers to the candidate method, not the party method. "Collins" is independent candidate Charles Collins of Georgia.
On June 13, the Federal Election Commission ruled that if the Reform Party nominates Ross Perot for president in 1996, it is entitled to about $30,000,000 in general election public funding for its presidential campaign. However, if it nominates someone else, the FEC refused to say whether the party would receive the money. The FEC says the party must establish a national committee before the question can be answered.
Just prior to the Federal Communication Commission hearing on June 25, to decide whether Fox TV network can offer free time to the major party presidential candidates, Fox hinted that it will alter its proposal somewhat. Originally it had said it would offer the time to presidential candidates who had a "realistic chance of winning". Now it seems willing to offer it to any presidential candidate who would meet the old League of Women Voters' standards for presidential debates: 15% showing in opinion polls.
At a national convention in Cleveland on June 6-9, Labor Party Advocates transformed itself into the Labor Party. Almost 1,400 delegates from 44 states attended. Ralph Nader, Green Party presidential candidate, was the only third party presidential candidate allowed to speak. A representative of the New Party also spoke. The party voted not to run any candidates in 1996 or 1998, but to continue gaining endorsements from units of the AFL-CIO.
On July 5, the American Party of Oregon, a ballot-qualified party since 1992, voted to affiliate with the national Reform Party, and to change its name to Reform.
Former Governor Richard Lamm of Colorado will announce by July 20 whether he will seek the party's presidential nomination.
Addresses of nationally-organized parties who have presidential campaigns and who will be on the ballot in at least two states. The parties are listed in order of their age: