|This issue was originally printed on white paper.|
On July 11, the U.S. Court of Appeals, 11th circuit, ruled that a political party has a constitutional right to keep a candidate off its own state-funded primary ballot, if the party leaders feel that the candidate's political beliefs contradict the party's beliefs. Duke v Cleland, no. 95-8452.
The case was filed by David Duke in 1992 against Georgia, after he was kept off the Republican ballot. Georgia puts access to the presidential primary completely in the hands of a party's state chair and its two leading legislators. If any one of these three feels that a candidate should be on the primary ballot, the candidate is placed on the ballot; otherwise it is literally impossible for the candidate to get on the ballot.
Although this system only applies to the presidential primary in Georgia, there is nothing in the decision to suggest that there is anything different about a presidential primary, than a primary for other office. The analysis would also permit such a procedure to be applied for office other than president.
The decision was written by Judge Joseph Hatchett, a Carter appointee, and co-signed by Judges Albert Henderson, another Carter appointee, and Richard Mills of Illinois, a Reagan appointee.
The ACLU, which brought the case, plans to ask for a rehearing en banc, and if that is denied, may ask for U.S. Supreme Court review.
Judge Hatchett admitted that the act of excluding a candidate from the primary is state action. Ordinarily, a state cannot discriminate against people based on their political ideas. Nevertheless, Hatchett wrote, that principle "cannot trump the Republican Party's right to identify its membership based on political beliefs nor the state's interests in protecting the Republican Party's right to define itself."
The decision twice points out that Duke could have run as a third party or independent candidate.
The case in favor of severe ballot access restrictions for small and new political parties has always depended on the idea that "anyone", regardless of political ideology, is free to run for public office in Democratic or Republican primaries. Consequently, Duke v Cleland, if it is upheld, can utterly discredit the case in favor of severe ballot access restrictions for third party and independent candidates.
On June 28, the U.S. Supreme Court ruled that government cannot discriminate against anyone, on the basis of his or her party affiliation, without good reason. O'Hare Truck Service v City of Northlake, 95-191.
The O'Hare Truck Service lost its contract with a small Chicago suburb, because the owner of the company supported the losing candidate for Mayor. The lower courts ruled that the businessman had no recourse, but the Supreme Court reversed, and said that government cannot cause economic harm to anyone, just because of that person's partisan loyalties, without a good reason.
Back in 1976, the Court had ruled that government employees cannot be fired, based on their political affiliation. In 1980 the Court had also said that government employees cannot be demoted, based on party affiliation. In the new opinion, the Court said there was no reason to exclude independent contractors from the patronage case principles. Justices Scalia and Thomas dissented.
If Congress passes campaign finance reform which discriminates against third party and independent candidates (as it almost did in 1994), the O'Hare Truck Service decision ought to be helpful in blocking such legislation.
On July 10, the New York Assembly passed Senate Bill 7856-A, a bill which vastly improves ballot access for all candidates, major party, minor party, and independents alike. The Senate had already passed the bill, and the Governor is considered certain to sign it, since he initiated it.
Unfortunately, the bill doesn't go into effect until December 1, 1996.
The bill eliminates the requirement that the petition must carry the precinct number and the legislative district number, for each signer. This virtually cuts the workload in half, for petitioning groups. Since virtually no voter knows the precinct number, petitioners have had to spend hundreds of hours, researching this information.
The bill also eases strict requirements for numbering of pages of the petition; and if an error is made, the petitioning group has three days to correct it. The bill provides that if any voter signs more than one petition for the same office, the signature with the earlier date is valid. In the past, both would have been invalid.
The bill also provides that if a signer signs with a customary abbreviation of his or her first name, or uses initials, the signature is still valid even if the voter's registration uses a different form of the name. It provides that the circulator, as well as the signer, may place the voter's address on the petition. Other technical improvements are also made. Finally, the bill states that the law shall be liberally construed.
It seems likely that if a petition is challenged this year, and the basis for the challenge is a technicality which won't be in force after December 1, 1996, that a federal court would rule in favor of ballot access, on the grounds that there can't be a solid state interest in enforcing a restriction which has been repealed.
On July 3, U.S. District Court Judge David Russell, a Reagan appointee, struck down Sec. 6-106 of the Oklahoma law. That law says "The candidates of the Democratic Party shall be printed in the first column" on general election ballots. It also says that Republican Party candidates will be in the second column, and all other parties in the order of how many registered voters they have. Graves v Oklahoma State Election Board, no. cv-94-1420.
This is the first victory over a discriminatory law, governing how the ballot is organized, in over 15 years (except for a 1992 Rhode Island case, and even that case had no impact on the policy which automatically gives the two major parties the top two lines on the ballot).
In recent years courts have ruled that ballot order doesn't make any difference, and therefore refused to intervene. In this case, however, the Republican Party produced expert witnesses who said that order of candidates on the ballot does make a difference. Although there were experts on the other side, the Judge was persuaded that some voters are indeed influenced by the order of candidates on the ballot. The case had been brought in 1994 by a Republican state legislator, Rep. Bill Graves of Oklahoma City.
There are four qualified parties on the ballot this year: Democratic, Republican, Reform and Libertarian. It isn't clear how the State Board of Elections will align the parties this year. The state probably won't appeal.
The Oklahoma law had been one of only two state statutes in the nation which actually name the Republican and Democratic Parties and assign special privileges to them. The other law is in North Dakota, where the law names the Democratic and Republican Parties and says they are to remain on the ballot forever, no matter how little support they may have; other parties must poll at least 5% for Governor to remain on the ballot.
After ten years, California has finally given up its attempts to prevent political parties from endorsing, supporting or opposing candidates for non-partisan office, including judicial candidates. The law was passed in 1986 and resulted in at least three lawsuits, one of which had a full hearing in the U.S. Supreme Court (which ruled in 1991 that the plaintiffs lacked standing; so the issue had to be litigated all over again).
The Attorney General, with no fanfare, simply decided not to appeal the U.S. District Court's decision March 15, 1996 decision that the state law violates the First Amendment. That decision is now reported, California Democratic Party v Lungren, 919 F. Supp. 1397.
Litigation is probably not over, however. Now the courts must decide if the government-printed voters handbook, which includes statements by candidates for non-partisan office, can be censored to prevent such candidates from saying that they are endorsed by any particular party.
On July 3, U.S. District Court Judge Sam Sparks, a Bush appointee, refused to issue an injunction against the Texas party petition deadline of May 27. National Committee of the US Taxpayers Party v Garza II, 96CA-354-SS. He said that since the U.S. Supreme Court already approved the Texas ballot access laws in 1974, the deadline is likely constitutional.
Of course, back in 1974, the Texas petition deadline was on June 30. Furthermore, Anderson v Celebrezze came out later, in 1983.
Judge Sparks also cited Texas Independent Party v Kirk, in which the 5th circuit upheld the May petition deadline for non-presidential candidates (see B.A.N. of June 26, 1996). Plaintiffs had argued that the Kirk decision doesn't apply to presidential candidate petitions, but Judge Sparks felt otherwise.
The U.S. Taxpayers Party feels that it probably will qualify for the Texas ballot this year, so it doesn't need more time and it won't appeal.
On May 21, the Louisiana Supreme Court ruled that the Republican Party need not follow state law, on how its State Central Committee must be organized. Louisiana Republican Party v Foster, no. 96-CA-0314. The Republican Party had been happy with the former state law on how it should be organized, but the legislature revised it in 1995, against the wishes of the state party. The Supreme Court vote was unanimous.
The decision was no surprise, since the U.S. Supreme Court ruled in 1989 in Eu v San Francisco County Democratic Central Committee that internal party organization is for the party to determine, not the government.
Back in 1992, the Green and Socialist Workers Parties of Florida filed a lawsuit in federal court against a Florida law, which says that "political bodies" must file a $10,000 bond, if they wish to be recognized. A "political body" is an unqualified party which intends to petition for any partisan office; without this status, a party label cannot be used on the petition.
The case was assigned to U.S. District Court Judge K. Michael Moore, a Bush appointee who seemed very uninterested in the case. Finally, on May 24, 1996, Judge Moore dismissed the case, on the grounds that the former Secretary of State promised not to enforce the law.
On June 20, the current Secretary of State sent certified letters to all the political bodies in the state (except for the Reform Party, which had posted the bond), telling them that since they haven't posted a bond, their status as a "political body" is terminated!
The Secretary of State now says that the letters were sent in error. However, plaintiffs have prevailed upon the court to re-open the case, and have renewed their plea that the law be declared unconstitutional.
On June 26, the U.S. Supreme Court ruled that political parties may spend as much money as they wish on political advertising, as long as the spending is not coordinated with the campaign of any particular candidate for federal office. Colorado Republican Federal Campaign Committee v Federal Election Commission, no. 95-489.
Four justices (Kennedy, Rehnquist, Scalia and Thomas) would have gone further, and ruled that political parties have a First Amendment right to spend as much money on advertising as they wish, regardless of whether the advertising is coordinated with the campaign of its candidates or not. The majority ruled that this question must be reserved for another case. Justice Thomas wrote separately to say that he believes all contribution limits violate the First Amendment.
Justices Stevens and Ginsburg would have upheld the FEC (which had tried to fine the Republican Committee). They would have upheld the law, which says that a party must limit its spending to 2 cents multiplied by the voting age population of the state, in any particular U.S. Senate race.
1. Alaska: (See also this update.) On July 10, U.S. Supreme Court Justice Clarence Thomas refused to issue an injunction to stop Alaska from holding a blanket primary for the Republican Party (one in which Democratic voters may participate). The Court won't say until October whether it will hear the Alaska Republican Party's constitutional case against that type of primary.
On July 17, U.S. District Court Judge Russel Holland also refused to halt the primary, even though he said the party will probably ultimately prevail. Ross v State Of Alaska, no. cv 95-0053-cv (HRH). The party still plans to hold its own privately-financed mail ballot primary. If the results of the government primary and the party's own primary do not coincide, it will be up to some court to decide which results to use to determine the party's nominees.
2. Arizona: On July 3, supporters of Ralph Nader filed a lawsuit in federal court in Tucson against the June petition deadline for independent candidates. Haywood v Hull, no. cv 96-444-TC-RTT. The case was assigned to Magistrate Raymond Terlizzi, a Clinton appointee.
3. Arkansas: the Reform Party's lawsuit against the January petition deadline for new parties will have a hearing in federal court on July 23-24. In the meantime, the Arkansas Supreme Court ruled on July 8 that the deadline really is January, not May (the election law contradicts itself). Citizens to Establish a Reform Party v Priest, no. 96-639.
4. Georgia: On July 15, the Libertarian Party filed its 16th ballot access appeal with the U.S. Supreme Court (that Court refused to hear the earlier fifteen cases). Chandler v Miller. This is the case over mandatory drug tests for candidates for state and local office.
5. Missouri: On July 1, the U.S. Supreme Court refused to hear Nixon v Carver, 95-1258. This is the case in which lower courts had invalidated $100 contribution limits from individuals to candidates. The Court also refused to hear Nixon v Shrink Missouri Government PAC, no. 95-1524, in which lower courts had invalidated another Missouri campaign finance law, which imposed severe penalties on candidates who refuse to voluntarily limit their expenditures.
6. New York: on April 27, U.S. District Court Judge Frederic Block, a Clinton appointee, struck down a New York law that no one who signs a petition to nominate a candidate for School Board, can circulate a petition for any other candidates for School Board. Brock v Sands, 924 F Supp 409 (E.D.).
7. Oklahoma: on July 10, U.S. District Court Judge Wayne Alley refused to order the U.S. Taxpayers Party onto the Oklahoma ballot, saying the party hadn't yet presented enough evidence to persuade him that it will eventually win the case. National Committee of U.S. Taxpayers Party v Oklahoma State Election Board, no. cv-96-343.
The party bases this case on the U.S. Supreme Court congressional term limits decision, and federal preemption principles, combined with the history of the Oklahoma law.
8. Oregon: On May 1, the State Court of Appeals struck down a law which forbids anyone from wearing a political badge or button at the polling place. Picray v Secretary of State, 916 P 2d 324.
9. Virginia: Republican Party state officials still haven't decided whether to ask the U.S. Justice Department for permission to charge a $35 or $45 fee, for delegates to its state nominating conventions (back on March 27, the U.S. Supreme Court ruled that parties must ask for permission to change any procedures involving nominations). The party is so disgruntled by that unfavorable opinion, it expects to nominate by primary in 1997, just as it did this year. Virginia law lets qualified parties choose each year whether to nominate by primary or by convention.
10. West Virginia: On July 22, the Libertarian Party will ask the State Supreme Court to order Harry Browne on the ballot as the party's presidential nominee. Although the petition had enough valid signatures on it, the state says it won't print Browne's name on the ballot because he failed to file a declaration of candidacy and a $2,000 filing fee by July 3. The party argues that the fee is unconstitutional since it is discriminatory (major party presidential nominees don't need to pay it to appear on the November ballot), and that the July 3 deadline for paying it is irrational, since the petition for president isn't due until August 1 and since the party didn't even know who its nominee was, as of July 3.
11. Wyoming: On July 1, federal U.S. District Court Judge Clarence Brimmer refused to rule on the constitutionality of the Wyoming May 1 petition deadline for new parties. He said that since the Labor Party of Wyoming had fewer than 1,000 signatures (8,000 valid are needed), even if had more time, it couldn't qualify. Spiegel v State of Wyoming, 96cv-1028B. The party may appeal.
See this note about tables.
|FULL PARTY||CAND.||LIBT||REFORM||NATL LAW||TAXPAYR||PARTY||CAND.|
|Alabama||36,060||5,000||already on||*finished (independent)||finished||*finished||Jul 1||Aug 30|
|Alaska||2,586||# 2,586||already on||*already on||finished||already on||in doubt||in doubt|
|Arizona||15,062||# 7,813||*unresolvd||already on||*too late||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||*already on||*already on||already on||already on||--||Jul 16|
|Connecticut||no procedure||# 7,500||*8,800||*finished||*5,000||*finished||--||Aug 7|
|Delaware||(reg.) 191||3,828||already on||*finished||(reg) 150||*finished||Aug 17||Jul 15|
|D.C.||no procedure||# 3,458||*2,500||*finished||*3,000||0||--||Aug 20|
|Florida||196,788||# 65,596||finished||finished||*write-in||*too late||Jul 16||Jul 15|
|Georgia||30,036||# 31,771||already on||*finished||*finished||*finished||Jul 9||Jul 9|
|Hawaii||4,889||# 3,829||already on||*already on||already on||0||Apr 24||Sep 6|
|Idaho||9,644||4,822||already on||*finished||*6,500||600||Aug 31||Aug 26|
|Illinois||no procedure||# 25,000||already on||*finished||*15,000||*16,500||--||Aug 5|
|Indiana||no procedure||# 29,822||already on||*finished||*too late||*finished||--||Jul 15|
|Iowa||no procedure||# 1,500||*200||*finished||*finished||*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||*finished||*finished||4,000||*finished||--||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||*finished||*finished||already on||Aug 5||Aug 5|
|Massachsts.||(reg) 31,661||# 10,000||already on||*finished||*10,000||*7,500||Feb 14||Jul 30|
|Michigan||30,891||30,891||already on||*finished||*finished||*too late||Jul 18||Jul 18|
|Minnesota||89,731||# 2,000||*200||already on||*0||*0||May 1||Sep 10|
|Mississippi||just be org.||# 1,000||already on||*finished (independent)||already on||already on||Jan 12||Sep 6|
|Missouri||10,000||10,000||already on||*finished||*12,000||*finished||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||*finished||already on||500||Aug 1||Aug 27|
|Nevada||3,761||3,761||already on||*finished||already on||already on||Jul 11||Jul 11|
|New Hampshire||9,584||# 3,000||already on||*finished||*1,500||*finished||Aug 9||Aug 7|
|New Jersey||no procedure||# 800||*400||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||*2,400||*already on||*1,200||*0||--||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||*2,900||already on||already on||finished||Aug 22||Aug 22|
|Oklahoma||49,751||# 41,711||already on||already on||*too late||*too late||May 31||Jul 15|
|Oregon||18,316||14,601||already on||already on||*7,000||*1,000||Aug 1||Aug 27|
|Pennsylvania||no procedure||# 24,425||*finished||*finished||*18,000||*20,000||--||Aug 1|
|Rhode Island||18,069||# 1,000||*400||*finished||*1,100||*200||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)||*1,500||already on||Apr 2||Aug 6|
|Tennessee||37,179||25||already on||already on (independent)||already on||*already on||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||*finished||already on||finished||Sep 19||Sep 19|
|Virginia||no procedure||# 15,168||*14,500||already on||*6,000||*3,500||--||Aug 23|
|Washington||no procedure||# 200||*already on||*already on||*already on||*already on||--||Jul 6|
|West Virginia||no procedure||# 6,837||*in court||*finished||*2,500||0||--||Aug 1|
|Wisconsin||10,000||# 2,000||already on||already on||can't start||already on||Jun 1||Sep 3|
|Wyoming||8,000||9,810||already on||*already on (independent)||already on||0||May 1||Aug 25|
|TOTAL STATES ON FOR PRESIDENT||35||25||18||17|
"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||*in court||too late||too late||too late||too late||too late||too late||too late|
|California||already on||maybe on||*6,500||0||0||0||0||0|
|Colorado||*already on||*already on||*already on||already on||*too late||*too late||*too late||*too late|
|Delaware||(reg.) 7||0||0||0||(reg) 3||(reg) *20||0||0|
|Florida||*write-in||0||*too late||*write-in||*write-in||*too late||*too late||*too late|
|Georgia||*too late||*too late||*too late||*too late||*too late||*too late||*too late||*too late|
|Indiana||*too late||*too late||*too late||*too late||*too late||*too late||*too late||*too late|
|Maine||already on||too late||too late||too late||too late||too late||too late||too late|
|Michigan||*too late||already on||*too late||*too late||*too late||*too late||*too late||*finished|
|New Mexico||already on||0||0||0||0||0||0||0|
|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||*already on||*already on||*already on||*too late||*already on||*too late||*too late||*too late|
|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 *Colorado, Tennessee and has *350 in Utah. * -- entry changed since last issue. "Can't start" entry in Wisconsin on this page refers to the candidate method, not the party method. "Collins" is independent candidate Charles Collins of Georgia. "Write-in" means write-ins will be counted for the party.
Delegates to the Libertarian Party national convention on July 6 cast these votes for president:
See this note about tables.
Harry Browne 416
Rick Tompkins 74
none of the above 60
Irwin Schiff 32
Douglas Ohmen 20
The party's hopes to have Harry Browne appear in the general election presidential debates were boosted, when Washington Post columnist David Broder wrote on July 10 that, in his opinion, Browne should be included in the debates. The Commission on Presidential Debates says in its rules that one of the requirements for an invitation into its debates, is that leading political commentators advocate that the candidate in question be invited to participate.
The Arizona Libertarian Party submitted its candidates for presidential elector three business days past the statutory deadline, and is seeking forgiveness from the Secretary of State. In the past, state elections officials have forgiven state Republican and Democratic Parties when they made similar mistakes.
On June 27, the Independence Party of New York, a ballot-qualified party since 1994, announced that it has formally become the New York state affiliate of the Reform Party. Also, it will change its name to the Reform/Independence Party. However, the change won't go into effect until next year. A few days later, the party's Virginia affiliate voted to change its name to "Reform". All of the party's affiliates now use the word "Reform" in the party name.
The party has mailed a ballot to all registered party members, and to everyone who signed a petition to put the party on the ballot. Although material enclosed with the ballot suggests that Richard Lamm and Ross Perot have been most frequently mentioned for the party's nomination, the ballot itself does not name any candidates, and merely provides a write-in space. The voter must sign the ballot. The backside of the ballot contains a bar code and a serial number for that particular voter.
Earlier this year, the Minnesota legislature tentatively legalized "fusion". "Fusion" means that two parties jointly nominate the same candidate.
Since fusion is in effect this year in Minnesota, the New Party (which won the lawsuit in the 8th circuit which makes fusion possible), resolved to enjoy the fruits of its victory. Minnesota members of the New Party support many Democratic Party office-holders, including U.S. Senator Paul Wellstone, who is up for re-election this year; and they desired to jointly nominate Wellstone and certain other Democratic candidates.
The New Party first asked the Democratic Party if the Democratic Party would let some of the Democratic nominees be cross-endorsed by the New Party. Under the Minnesota law, fusion cannot occur unless both parties, and the candidates, give their consent. The Democratic Party said "Yes". The New Party then hired professional signature-gatherers to gain ballot status as a "minor party" (a new procedure which requires 17,947 valid signatures), and also to circulate candidate petitions for the Democrats it wished to cross-endorse.
After the New Party secured these signatures, at considerable expense, the Democratic Party changed its mind and now refuses to give its consent to fusion with the New Party. Since the New Party had no nominees other than Democratic candidates, it is left with no candidates on the ballot.
On July 16, Congresswoman Cynthia McKinney won her Democratic primary fight. Most observers had predicted that she would lose to a white Democrat, since the district is now majority-white, but they were wrong.
McKinney is the chief sponsor of HR 2545, which would let states use proportional representation to elect members of the House. She is now in a better position to work for the bill. A few months ago, Representatives Corrine Brown of Florida and Eddie Bernice Johnson of Texas became co-sponsors; the bill now has 7 sponsors.