On January 29, the California State Court of Appeals ruled that California’s minor parties are not entitled to a trial, to present evidence showing that the top-two system injures voting rights of voters who wish to vote for minor parties in the general election. The case is Rubin v Bowen. The decision came down only two weeks after the hearing. I haven’t see a copy of the decision yet but when I get a copy, I will do my best to create a link to the decision. The decision was written by Judge Margulies, who was the least favorable judge at the hearing. She said that the First Amendment is n’t violated by a system in which minor party candidates are off the general election ballot, because minor parties are free to advocate their their supporters vote for one of the two major party candidates.
On January 29, the Ninth Circuit heard arguments in Arizona Libertarian Party v Bennett, 13-16254. The case is about the Arizona paper voter registration forms. The state law says only the two largest parties should be listed on the form, each with a checkbox. If a voter wants to register as an independent, or into any other party (even a qualified party) the voter must write-in that choice on a blank line that is less than an inch long, and check the “other” box. The plaintiffs are the Libertarian and Green Parties.
The three judges were M. Margaret McKeown, Marsha Berzon, and A. Wallace Tashima, all Clinton appointees. Judge McKeown asked the most questions. The judges seemed skeptical that there is any genuine reason for the state to refuse to list all the qualified parties on the form. The state’s defense was that the Libertarian and Green Parties are not harmed by not being listed on the form, and that it is more efficient to only list the two largest parties. A decision is likely in several months. The hearing was in Tucson. It is somewhat unusual for the Ninth Circuit to sit in Tucson.
On January 28, the New Hampshire House Election Law Committee heard HB 185, which would restore the straight-ticket device. The committee sent it to a subcommittee for further study. This probably means that it won’t pass this year. Thanks to Darryl Perry for this news.
The Kansas House Elections Committee has introduced HB 2108, which would establish a straight-ticket device. Kansas repealed the device in 1923. The device is especially harmful to independent candidates, because they don’t get listed in the straight-ticket area of the ballot. The bill was suggested by Secretary of State Kris Kobach. See this story.
On January 28, the South Dakota Senate State Affairs Committee amended SB 69 to make ballot access more difficult for independent candidates. Furthermore, the committee defeated an amendment that would have eased the deadline for a newly-qualifying party to submit its petitions, and approved the original part of the bill that moves the new party deadline from March to February. The votes on these amendments were all party-line, with all Republicans voting in favor of making ballot access more restrictive, and all Democrats voting in favor of easing ballot access.
As amended, SB 69 says that no one can sign an independent candidate’s petition except voters who are registered “independent.” The bill also lowers the number of signatures needed for an independent, from 1% of the last gubernatorial vote, to 1% of the number of registered independents. The number of signatures for a statewide independent for 2016 would fall from 2,775 to 862. However, the net effect of the change would be to make ballot access worse for independents. Only 16% of South Dakota voters are registered “independent.” Going out on the street with a petition in which only 16% of the registered voters are eligible to sign would be difficult: effective petitioning depends on speed, and having to ask every person encountered if he or she is a registered independent would be perceived as nosy, and would be time-consuming. Also, not everyone knows whether or not he or she is registered “independent”. It’s especially likely that even well-informed voters wouldn’t know if they are “Nonpartisan” or “independent.”
The bill is flawed because it won’t let “Nonpartisan” voters sign for an independent candidate, nor could voters who are registered members of unqualified parties sign. “Nonpartisan” voters are those who didn’t fill out the part of the voter registration form that asks about affiliation; “independent” voters are those who checked the “independent” box. Currently South Dakota has 86,110 independent voters, 17,505 Nonpartisan voters, and 2,569 members of unqualified parties.
Another flaw is that the bill doesn’t specify how to calculate the number of registered voters, because the state puts out a voter registration tally every month, and the bill doesn’t specify which month’s tally should be used to determine 1% of the registered independents.
Only two states ever banned registered members of qualified parties from signing for an independent candidate, Louisiana before 1949, and Arizona 1993-1999. The Arizona ban on party members signing an independent candidate petition was invalidated in Campbell v Hull. The theory that says states can’t prohibit registered voters from signing a ballot access petition for a candidate that they could vote for if the candidate were on the ballot was set forth in Socialist Workers Party v Rockefeller, a 1970 three-judge district court decision that was summarily affirmed by the U.S. Supreme Court. The New York law didn’t ban party members from signing for an independent candidate, but it did ban voters from signing for an independent candidate if that voter hadn’t been registered in the preceding general election. That prohibition excluded voters who only came of age since the new election, voters who moved into New York state since the last election, and voters who had become citizens since the last election. The New York court found no state interest in stopping such new voters from signing for an independent.
The Committee rejected an amendment by Senator Bernie Hunhoff (D-Yankton) to move the deadline for a newly-qualifying party from March to June (that amendment said new parties would nominate by convention). Instead the majority voted to set that deadline in February, even though in 1984 the state was sued over the old February deadline and admitted the deadline was too early, and settled that part of the case without the need for a judicial decision. The committee was told about the 1984 precedent, but it chose to act anyway.
South Dakota’s legislature has been very hostile to independent candidates recently. In 2007 it moved the non-presidential independent deadline from June to April, even though the primary is in June and case law is unanimous that independent candidate petition deadlines can’t be earlier than the primary.
Michigan State Senator David Robertson (R-Grand Blanc) has introduced SB 44. It moves the presidential primary from February to the middle of March. If Michigan doesn’t pass this bill, or a similar bill, its presidential primary will not be recognized as legitimate by the Republican and Democratic national committees. Thanks to Josh Putnam for the news.