| This issue was originally printed on white paper. |
U.S. SUPREME COURT LETS FORBES DECISION STAND
BIG VICTORY ON DEBATES FOR THIRD PARTY AND INDP. CANDIDATES
(See also this update.)
On November 7, the U.S. Supreme Court refused to hear the appeal of Arkansas Educational Television, which was fighting for the right to discriminate against third party and independent candidates in debates which it sponsors. Arkansas Educational TV v Forbes, no. 94-490.
This means that in the 8th circuit, public TV is bound by that decision. The 8th is Minnesota, Iowa, Missouri, Arkansas, North & South Dakota, and Nebraska.
It also means that the Forbes decision will be influential in the rest of the nation, since it has the prestige of having withstood a possible reversal by the U.S. Supreme Court (however, there is a contrary 1990 precedent in the 11th Circuit, so the Forbes decision cannot prevail in Florida, Georgia or Alabama, which are in the 11th circuit). For anyone who wishes to cite or read the Forbes decision, it is reported at 22 F 3d 1423 (1994).
Even before the U.S. Supreme Court action on November 7, a Michigan state court followed the Forbes decision and ordered WKAR, a public TV station, to invite all the candidates to debate, not just the Democrat and Republican. Coon v Michigan State University, no. 94-78869-cz (Ingham Co. Circuit Court).
Two other lawsuits are pending on this issue in federal court: Day v KLVX-TV, no. s-94-921-HDM (Nevada), and Ehlers v Northern Texas PBS, no. 4-94cv-708-Y, Fort Worth, Texas. Both were filed by Libertarians who were excluded from debates sponsored by public TV.
On October 13, Federal Magistrate Alan Albright upheld several Texas ballot access laws. Texas Independent Party v Kirk, no. A-94-CA-175 JRN (Austin). The outcome was disappointing, since at the hearing the Magistrate had seemed convinced that the laws are unconstitutional.
Upheld: (1) third party and independent candidate petitions are due in May; (2) independent and third party candidates (for office other than president) must file a declaration of candidacy in January; (3) new parties must hold precinct, county and district conventions in March. The Magistrate didn't even remember to rule on a fourth issue, a challenge to Texas law which requires independent candidate petitions to carry the voter registration number of all signers (this was held unconstitutional in 1988 for new party petitions, so it's difficult to imagine how it could be valid for independents).
Plaintiffs are now trying to persuade the U.S. District Court Judge who has jurisdiction over the case, James Nowlin, to revise or reverse the Magistrates ruling. In a 1988 lawsuit, Nowlin ruled that voter registration numbers cannot be required on new party petitions.
Both ballot access lawsuit victories mentioned in the Sep.18, 1994 B.A.N. were recently affirmed.
1. Schulz v Berman, the case over a law which required petition signers to include precinct numbers and legislative district numbers for all signers, was won in the 2nd Circuit on November 2. It had also won in the U.S. District Court on September 28.
The decision means that the state can no longer require petition circulators to spend thousands of hours, looking up precinct and legislative district numbers and writing them down on petitions before they are submitted. This will make it much easier to get on the ballot in the future. Judges were Jose Cabranes, a Carter appointee; Roger Miner (Reagan) and Joseph McLaughlin (Bush).
This was the first time the U.S. Court of Appeals for the 2nd Circuit had ever declared a state ballot access law unconstitutional. The 2nd Circuit had been the only circuit which had never held a state ballot access law unconstitutional. Even more unusual, the case was argued and won by Robert Schulz, who is not an attorney. He was representing himself (in his role as a Libertarian candidate).
2. On October 28, New York states highest state court, the State Court of Appeals, voted 7-0 to put Tom Golisano on the ballot as the Independence Party candidate for Governor. Cipolla v Golisano, no. 260. The case had also been won in the State Supreme Court, Appellate Division, on October 14.
The issue was whether an unqualified political party could substitute a new candidate, to replace an original candidate who had withdrawn, as late as mid-September. The final decision was based on statutory construction, not the constitutional issue of equal treatment of all political parties.
The loser in both New York cases was the states Conservative Party, which carried on the appeals and which argued that it was being harmed by having other parties on the ballot. The Conservative Party had no candidates of its own for statewide office this year, but merely cross-endorsed the entire Republican Party slate.
On November 8, 4.9% of U.S. voters voted for a third party or independent candidate for the most important office on the ballot. This does not include votes cast on third party lines for cross-endorsed major party candidates. Most important office is Governor. If there was no other candidate for Governor, or if the state didn't elect Governor, then it is U.S. Senate; if none of these, then U.S. Congress.
The U.S. Supreme Court will hear oral arguments in U.S. Term Limits v Thornton, no. 93-1456, on November 29. This is the case over whether states may keep long-time incumbent members of Congress off ballots.
On October 19, the Arkansas Supreme Court ruled that even though the Independent Party is a fully-qualified party, none of its candidates could be on the ballot. Lewis v West, no. 94-1073.
Two rival claimants each argued that he should be the party's candidate for Governor. Delbert Lewis was the only candidate who filed in the party's primary, by the March deadline for candidates to file; Skip Cook was nominated at a party meeting in September.
The State Supreme Court ruled that Lewis couldn't be the candidate because he didn't submit a campaign finance form. The Court didn't mention that Lewis did turn in the form, but the Secretary of State refused to accept it because the Secretary of State didn't think the party was qualified.
The Court ruled that Cook couldn't be the party candidate, because state law requires all qualified parties to nominate only by primary, not by convention.
As a result, the party lost its qualified status, since it failed to poll 3% for Governor, since it had no candidate on the ballot for Governor or any other office. Ralph Forbes, an Arkansas activist who has associated himself with the Independent Party, filed a lawsuit in federal court just before the election, trying to win a ruling that the party should still be considered qualified, but its not clear that he has standing to represent the party. Forbes v McKuen, no. LR-c-94-704.
The chart in the Oct.18, 1994 B.A.N., showing the number of third party and independent candidates for Governor in the last 25 years, showed one such candidate in 1994 for Arkansas. Because of the late Arkansas decision, that is an error; the correct number is zero for 1994. Anyone who desires a corrected copy of the chart may obtain one by asking for it. Also, the U.S. House chart contained an error for Ohio; the correct number of independent or third party House candidates in 1994 is five, not two.
On October 12, the U.S. Supreme Court held a hearing in McIntyre v Ohio Election Commission, no. 93-986, over whether Ohio may make it a crime for anyone to write or distribute an unsigned campaign leaflet. The plaintiff was a housewife who prepared a leaflet advocating that certain School Board candidates be defeated. She was fined $100. She has since died, but her husband is keeping her appeal alive. The Ohio state courts upheld the law. Justices Sandra Day OConnor and Ruth Ginsburg seemed to show that they believe the law is unconstitutional.
The Sep. 18 B.A.N. reported that the Colorado Supreme Court had voted to put an independent candidate, Joanne Conte, on the ballot for state legislature, and that it announced it would explain its reasoning later.
On October 17, the Court released its explanation. Conte had changed her registration to Independent on August 2, 1993, anticipating that she would be an independent candidate in 1994. Colorado law says that an independent candidate must have been registered Independent for a whole year before filing her petition. The petition deadline was August 2, 1994. In July 1994, Conte asked the Secretary of State if she could turn in her petition early, so that if it lacked any signatures, she would have time to get more. The Secretary of State told her Yes, and after checking her signatures, told her she was qualified.
But after Conte filed a lawsuit against Colorado law which says that major party candidates always get a better spot on the ballot than anyone else, the Secretary of State changed her mind and said that Conte was off the ballot because the petition had been turned in less than a year after Conte changed her registration.
The Supreme Court, by a vote of 5-2, interpreted the law to mean that when a petition is filed (i.e., turned in), it remains on file continuously from the date it is filed until the date it is due, and that therefore it was really filed on August 2. This is odd reasoning, which the minority pointed out, but the Court seemed to prefer this approach. The Court did not seem to like an alternate theory, that the Secretary of State, having accepted the petition, was estopped from changing her mind.
Two new lawsuits, alleging that states must be neutral when they design ballot position for political parties, were recently filed in federal court:
1. Maryland: Fox v Raynor, no. PJM-94-2802 (S.D.), challenges Maryland law which automatically puts Democrats above Republicans on the general election ballot. The case was assigned to Judge Peter Massitte, a Clinton appointee.
2. New York: Strong v Board of Elections, no. cv-94-4389 (E.D., Uniondale), argues that some objective rule must be used, to decide which lines to place third party or independent candidates for district office on the ballot. The plaintiff, an independent candidate for the U.S. House of Representatives, was arbitrarily placed in the Socialist Workers Party line. At the hearing, Judge Arthur Spratt looked at a New York ballot and was unable to find the candidates name on the ballot. Nevertheless, he denied any injunctive relief.
Other pending cases on this same issue, already mentioned in previous issues of B.A.N., are pending in Colorado and Oklahoma. Also there is a New Jersey case, not previously mentioned in B.A.N., in the 2nd Circuit, Grant v Election Law Commission, no. 94-5506.
On October 28, 1994, federal Magistrate William Barry upheld New Hampshire law which says that only the two largest parties may be nominate polling place officials. Werme v Merrill, no. 94-414-JD. The Libertarian Party, which brought the lawsuit, is asking federal judge Joseph DiClerico to disapprove the Magistrates decision.
On October 28, a lower state court upheld the Florida petition requirement of 3% of the number of registered voters. Libertarian Party of Florida v Smith, no. 94-4143 (Leon Co. Cir. Ct., 2nd div.). The party will appeal.
1. Arkansas: On November 7, Gerhard Langguth asked the U.S. Supreme Court to hear his appeal in Langguth v McKuen, which challenges the May 1 petition deadline for non-presidential independent candidates. COFOE (the Coalition for Free & Open Elections) helped pay the costs of this appeal, and thanks everyone who contributed for this purpose.
2. California: There is a hearing on November 16 in Green Party of California v Eu, 94-16564, over whether the First Amendment protects a political party's right to decide for itself whether to have none of the above on its own primary ballots, and whether it may close nominations for particular offices, so that no one may run in the primary for such an office. The hearing is in the State Court of Appeals in Sacramento at 9:30 a.m.
3. Illinois: On October 21, the Illinois Appellate Court refused to put the United Independents Party on the ballot. Reed v State Board of Elections, no. 4-94-0778. The issue was whether the party was on time, when it tried to file its petitions on the last day to file. The party argued that it reached the door of the State Elections Board a few minutes before 5 p.m., but that the door was already locked. The Board says its clock was correct and that it locked the doors at 5:01 p.m. The Court used the technicality that the party's affidavits (containing evidence for the lawsuit) were not filed on time.
4. Kansas: On November 2, the Natural Law Party appealed Hagelin Committee v Graves to the U.S. Supreme Court. The issue is the August 4 petition deadline for independent presidential candidates.
5. Louisiana: on September 26, the state asked the U.S. Supreme Court to hear its appeal in the congressional redistricting case, Louisiana v Hays, nos. 94-558 and 94-627. The issue is whether states may draw peculiar-shaped congressional districts so as to create districts with Black voter majorities.
6. Maryland: on October 12, the 4th circuit denied a rehearing in Cane v Worcester County, no. 94-1579. On November 9, the county indicated it prefers single member districts, not cumulative voting. There is a hearing in U.S. District Court to decide which system will be used.
7. New York: on November 7, the U.S. Supreme Court refused to hear Tuxedo Union Free School District v Cullen, no. 93-1906. The issue was whether the government can enforce a no-politics rule within 100 feet of a polling place, if it fails to post signs showing where that zone starts. The 2nd circuit had ruled that it may not enforce the law, without such signs.
8. South Carolina: On October 5, a Libertarian candidate filed a brief with the U.S. Supreme Court, asking that the court hear Greene v Election Commission, no. 94-622. The issue is whether the results of an election for Aiken county office should be invalidated. The candidate, Douglas Greene, lost to the Democratic nominee by 628 to 623, but eleven voters who wished to vote for Greene were erroneously turned away from voting, on the grounds that they weren't registered to vote in that district (but, in reality, they did live in that district; the registration tally book was in error). The South Carolina Supreme Court refused to disturb the election results.
9. Tennessee: on October 21, a federal judge denied an injunction in Hooker v Sasser, no. 3-94-750 (M.D.), a case challenging the constitutionality of current campaign finance practices in federal elections.
On September 30, the Delaware Attorney General ruled that no candidate may be nominated by more than one political party. Therefore, John Reda, a Libertarian nominee who had also won the Republican primary, was not listed twice on the November ballot.
Since the law doesnt ban anyone from being the candidate of more than one party, and since the Delaware Supreme Court ruled earlier this year that a candidate may enter a party primary regardless of whether the candidate is registered in that party, the Attorney General had a tough time justifying his decision. He said that since the law says a candidate must fill out a form asking for the candidates party, and the word party in that law is singular, therefore the law implicitly bans anyone from running as the candidate of two political parties.
On September 30, Governor Pete Wilson vetoed AB 2218, which would have provided that write-ins not be counted for declared write-in candidates, unless the vote-counting computer showed that at least 1.5% of the voters had cast a write-in vote. Wilson said every voter has a right to have his or her vote counted.
Here are the statewide qualified third parties as of the day after the November 1994 election. Underlined parties were not qualified as of the day after the November 1992 election, so __underlined__ entries represent gains.
Note -- many browsers do not support the underline attribute, even though it is part of the HTML 2.0 and HTML 3.0 specifications. So that you can see the underlined words here, I've surrounded them with __double underscores__. -- Bob Bickford, Liberty Librarian
Alaska: Alaska Independence, Green
California: American Independent, Green, Libertarian, Peace & Freedom
Connecticut: A Connecticut Party, Concerned Citizens, Independence
Delaware: A Delaware Party, Libertarian
Dist Columbia: Statehood
Georgia: Libertarian (statewide office only)
Hawaii: Best, Libertarian
Idaho: Libertarian
Indiana: __Libertarian__
Kansas: Libertarian
Louisiana: Prudence-Action-Results
Maine: __Green__
Massachusetts: __Libertarian__
Michigan: __Libertarian__, Workers World
Minnesota: __Independence__
Mississippi: Libertarian, US Taxpayers
Missouri: Libertarian
Montana: Libertarian
Nevada: Independent American, Libertarian, Natural Law
New Hampshire: Libertarian
New Mexico: Green, Libertarian
New York: Conservative, __Independence Fusion__, Liberal, Right to Life, __Tax Cut Now__
Oregon: American, Libertarian, New Alliance, Pacific
Pennsylvania: __Constitutional__, Libertarian, Patriot
Rhode Island: __Cool Moose__
South Carolina: Libertarian, New Alliance, U.S. Taxpayers
South Dakota: Libertarian
Texas: Libertarian
Utah: Independent
Vermont: Grassroots, Liberty Union, Natural Law
Wisconsin: Libertarian, New Progressive, U.S. Taxpayers
Wyoming: __Libertarian__
(The New Mexico Green Party and the Vermont Natural Law only had convention status before the election, but now they may nominate via their own primary).
The newly-qualified party in Rhode Island was created when an independent candidate for Governor, using the label Cool Moose polled over 5% for Governor (he polled 9%). One of the newly-qualified parties in New York, the Tax Cut Now Party, was merely a device to put the Republican gubernatorial candidates name on the ballot under an additional line. It had no candidates of its own and the people who organized it were Republicans who didn't expect it to poll the 50,000 votes needed to make it a new ballot-qualified party. Preliminary election returns give the Tax Cut Now Party 50,011 votes for Governor.
Possible additions to the list:
(1) Illinois: parties need 5% for any statewide office to be qualified for statewide office (however, they need 5% for Governor to be qualified for all office). It is very likely that the Libertarian Party polled over 5% for Trustee of the State University, but there is a dispute as to how percentages should be calculated for that office, so the issue is likely to wind up in state court.
(2) Virginia: parties need 10% in any statewide race. Virginia Independent Party candidate Marshall Coleman polled 11% for U.S. Senate, but it is not clear whether the state will recognize that Coleman was the party's nominee. A lawsuit may result.
Near Misses:
Two parties almost attained qualified status: (1) the Natural Law Party in Michigan, which was only 1,000 votes shy; (2) the Grassroots Party in Minnesota, which was only about 2,000 votes short (it needed 5% for any statewide race and it got about 4.9% in two races).
Parties which lost Qualified Status:
Parties which had qualified status the day after the election in November 1992, but which no longer have it, are:
(1) Arkansas: Independent Party
(2) Hawaii: Green
(3) Massachusetts: United We Stand
(4) Nevada: Populist
(5) Utah: Independent American, Libertarian, Populist
The Independent Party of Arkansas and the United We Stand Party of Massachusetts didn't have any candidates on the ballot, so neither met the 3% vote requirement.
The Nevada Populist Party didn't have any candidates for statewide office or for U.S. House on the ballot, so it didn't poll 1% of the statewide vote.
None of the listed Utah parties polled as much as 2% of the statewide vote, although they only need 500 signatures to regain their status.
The Green Party of Hawaii didn't poll 10% of the vote for Governor (it polled 3%), and it didn't run for U.S. Senator or U.S. House, so it was disqualified, even though it won one partisan office: a seat on the Hawaii County Council.
See this note about tables.
| STATE | 1992 | 1996 |
|---|---|---|
| Alabama | 5,000 | 5,000 |
| Alaska | 2,035 | 1,968 |
| Arizona | 14,072 | 14,798 |
| Arkansas | 0 | 0 |
| California | 134,781 | 147,238 |
| Colorado | 5,000 | 5,000 |
| Connecticut | 14,620 | 7,500 |
| Delaware | reg 144 | (est) reg 170 |
| Dist of Columbia | 3,072 | (est) 3,500 |
| Florida | 60,312 | 65,596 |
| Georgia | 26,955 | (est) 31,000 |
| Hawaii | 3,545 | 3,728 |
| Idaho | 4,090 | 4,822 |
| Illinois | 25,000 | 25,000 |
| Indiana | 29,890 | 30,700 |
| Iowa | 1,000 | 1,000 |
| Kansas | 5,000 | 5,000 |
| Kentucky | 5,000 | 5,000 |
| Louisiana | 0 | 0 |
| Maine | 4,000 | 4,000 |
| Maryland | 10,000 | 10,000 |
| Massachusetts | 10,000 | 10,000 |
| Michigan | 25,646 | 31,112 |
| Minnesota | 2,000 | 2,000 |
| Mississippi | 0 | 0 |
| Missouri | 20,860 | 10,000 |
| Montana | 9,531 | 9,473 |
| Nebraska | 2,500 | 2,500 |
| Nevada | 9,392 | 3,770 |
| New Hampshire | 3,000 | 3,000 |
| New Jersey | 800 | 800 |
| New Mexico | 2,069 | 2,292 |
| New York | 15,000 | 15,000 |
| North Carolina | 43,601 | 51,904 |
| North Dakota | 4,000 | 4,000 |
| Ohio | 5,000 | 5,000 |
| Oklahoma | 35,132 | 41,711 |
| Oregon | 36,092 | 14,352 |
| Pennsylvania | 37,216 | (est) 32,000 |
| Rhode Island | 1,000 | 1,000 |
| South Carolina | 10,000 | 10,000 |
| South Dakota | 2,568 | 3,113 |
| Tennessee | 25 | 25 |
| Texas | 38,900 | 43,913 |
| Utah | 300 | 300 |
| Vermont | 0 | 0 |
| Virginia | 13,920 | (est) 16,000 |
| Washington | 200 | 200 |
| West Virginia | 6,346 | 6,837 |
| Wisconsin | 2,000 | 2,000 |
| Wyoming | 8,000 | 8,000 |
| TOTAL SIGNATURES | 698,614 | 701,322 |
The chart above shows the number of signatures for a third party or independent candidate to get on the ballot for president. When a state has several methods, the easier method is shown above. Note that presidential ballot access is easier, than access for other office.
All numbers (on the preceding chart) represent signatures on a petition, except for Delaware, where it is the number of party members. Some 1996 figures will change slightly when official 1994 votes are tallied.
In a few states, third parties sometimes choose to qualify using the more difficult procedures for full party status, which are not shown above. In some of those states, the full party requirements will be:
| STATE | 1992 | 1996 |
|---|---|---|
| Alabama | 12,157 | 12,039 |
| Arkansas | 20,890 | 21,469 |
| California (registrations) | 78,992 | (est) 85,000 |
| Hawaii | 4,534 | 4,889 |
| Maine | 26,139 | 25,209 |
| Nebraska | 5,834 | 5,671 |
| Ohio | 34,403 | 33,119 |
| Oklahoma | 45,566 | 49,751 |
| Tennessee | 19,759 | 36,907 |
This year, at least one third party or independent candidate for Governor, U.S. Senator, or Congress-at-large, was able to debate both of his or her major party opponents, in these states:
1. Governor: Alaska, Arizona, Colorado, Connecticut, Hawaii, Idaho, Maine, New Hampshire, Oklahoma, Oregon, Pennsylvania, South Dakota (13 states).
2. U.S. Senator: Arizona, Delaware, Hawaii, Michigan, Missouri, Ohio, Oklahoma, Pennsylvania, Virginia, Wyoming (10 states).
3. Congress-at-large: Alaska, Delaware, Montana, Vermont, Wyoming (5 states).
There were inclusive debates for lesser statewide office in California and Georgia.
This list may be incomplete. Anyone with knowledge of such a debate which is not listed here, is urged to contact B.A.N. There were gubernatorial debates in New York but they didn't include the Republican.
A syndicated political column by Jack Germond and Jules Witcover, which ran in the Baltimore Sun the last week in October and in other newspapers the first week in November, commented on the Michigan U.S. Senate debate. The column criticized the Michigan debate, and seemed to indicate that it is a mistake to invite third party and independent candidates into debates.
However, Witcover stated later that the real point of the column was to criticize debates in which the moderator doesn't exercise any control, which was the case in Michigan.
In three places, statewide third party or independent candidates were elected to partisan office on November 8:
1. District of Columbia: the Statehood Party re-elected Hilda Mason to the City Council, at-large seat.
2. Maine: independent Angus King was elected Governor.
3. Vermont: independent Congressman-at-large Bernard Sanders was re-elected to his third term in the House.
Third parties elected state legislators in two states:
1. New Hampshire: Libertarian Don Gorman was re-elected, and Libertarian Jim McClarin was elected. The Libertarian Party previously had four state legislators, but one retired and two were defeated for re-election.
2. Vermont: the Progressive Coalition (which is not a party by state law, but which runs independent candidates who are usually labelled Progressive on the ballot) elected two state legislators. Previously there were three.
FUTURE ISSUES OF BALLOT ACCESS NEWS WILL CARRY VOTE TOTALS AND PERCENTAGES FOR ALL THIRD PARTY AND INDEPENDENT CANDIDATES FOR GOVERNOR AND BOTH HOUSES OF CONGRESS.
The October 10, 1994 issue of Newsweek says many observers feel that General Colin Powell may run for president in 1996 as an independent. The story says that Powell is registered Independent and that he contributed to the campaigns of both independent candidates this year in the U.S. Senate race, Doug Wilder and Marshall Coleman (Wilder dropped out of the race in September).
1. ACLU, American Civil Liberties Union, has been for fair ballot access since 1940, when it resolved that petition requirements be no greater than one-tenth of 1%. 132 W. 43rd St., New York NY 10036, (212)-944-9800.
2. CENTER FOR A NEW DEMOCRACY works to permit different parties to nominate the same candidate. 410 7th St. SE, Washington DC 20003, (202)-543-0773.
3. CENTER FOR VOTING & DEMOCRACY, for proportional representation. 6905 5th St., NW #200, Washington DC 20012, (202)-882-7378.
4. COFOE, Coalition for Free & Open Elections. Bx 20263, New York NY 10011 (212)-691-0776.
5. COALITION TO END THE PERMANENT CONGRESS, favors more competitive elections, including easier ballot access. Tel. (800)-737-0014.
6. COMMITTEE FOR PARTY RENEWAL, believes that strong parties are needed for popular control of government. Write Dr. Bill Mayer, Pol. Sci., Northeastern Univ., Boston Ma 02115.
7. THE DEMOCRACY PROJECT, gathers evidence that the U.S. violates an agreement it signed in 1990, pledging not to discriminate for or against political parties. Bob Waldrop, 1615 1/2 NW 20th St., Oklahoma City Ok 73106, tel. (405)-521-8831.
8. FOUNDATION FOR FREE CAMPAIGNS & ELECTIONS, Funds lawsuits which attack bad ballot access laws. Donations are tax-deductible. Write Richard Winger, 3201 Baker St., San Francisco Ca 94123.
9. ROSS-GREEN ASSOCIATES, initiated the Penny ballot access bill (HR 1755) and the Penny debates bill (HR 1753) and has a lobbying office at 1010 Vermont, #811, Washington, DC 20036, (202)-638-4858.