Ballot Access News -- September 6, 1997

Volume 13, Number 6

This issue was originally printed on flourescent pink paper.

Table of Contents
  19. 1997 ELECTIONS
  20. Subscription Information



Last year, the Brennan Center for Justice commissioned a study of the history of U.S. ballot access laws. The research is now complete, and it shows a shocking contrast between the ease of getting a new party on the ballot back then, versus what is required today. The Brennan Center, in New York, is an association founded by former law clerks to Justice William Brennan, created to advance his ideals.


Between 1889 and 1903, the deadline for a new party to turn in a petition (or to do whatever else was required) to gain a place on the ballot, was in September or October of the election year, in every state.

The median petition deadline of the various states was in October, for all presidential election years 1892 through 1916. Then, for 1920 through 1944, the median deadline was in September ("median" means that if all the states were listed in order of their deadline, the deadline for the state in the exact middle would be the "median" deadline).

From 1948 through 1968, the median deadline was in August. Starting in 1972, the median has been July (except that for new party presidential candidates, the median deadline improved starting in 1980, and has been in August since then).

Early petition deadlines have hampered ballot access for new and minor parties in three ways: (1) they force petitioning to be carried on before people are interested in the election, and sometimes in winter weather; (2) if the party is new, it may have missed some deadlines before it had even come into existence; (3) early deadlines, combined with laws which force parties to list their nominees on the petition, force minor parties to choose their nominees before they know who the major party candidates are, and what the issues will be.

Early petition deadlines were the chief problem for popular third parties, starting in 1912. Theodore Roosevelt couldn't get on the Oklahoma ballot that year because he didn't even think of organizing his new Progressive Party until June, and the Oklahoma deadline was in June. In 1924, Robert La Follette missed deadlines in Michigan and West Virginia, but elections officials in both states waived the law and put him on anyway. In June 1936, the National Union for Social Justice, headed by radio priest Father Charles Coughlin, launched the Union Party, but it was too late to get on the ballot as a party in eight states, and its presidential campaign, for Congressman William Lemke, was crippled. In 1972, the American Party didn't nominate its presidential candidate, Congressman John Schmitz, until August, and he failed to get on the ballot in 18 states.

Number of Signatures

The number of signatures needed for a party to get on the ballot, in all presidential elections before 1964, was far lower than it is today. The study calculated the number of signatures as a percentage of the number of registered voters (for the early years, when most states didn't require registration throughout the entire state, census figures estimating the number of eligible voters were used). The median percentage for all elections before 1964 ranged from one-tenth of 1%, to two-tenths of 1%. In 1968, the median requirement had risen to .26%; and by 1972, it had more than doubled, in only four years, to .55%.

Beginning in 1976, states began making it easier to get on the ballot for president, than for all other office. For president, the median requirements to get on starting in 1976 have hovered around one-half of 1%; for other office, it peaked in 1984 and 1988 at six-tenths of 1%, but since then has been at .5%.

Current signature requirements, five times (in the average state) as severe as they were in the 1920's, hurt new and minor parties because they soak up money and energy, which otherwise could go to campaigns.

Staying on the Ballot

What must a party do, to be on the ballot automatically (as the Republicans and Democrats are)? Generally, they must poll a certain percentage of the vote.

Here again, the requirements are much worse than they were in the past. The median vote test for all presidential elections 1892 through 1936 was 1%. By 1940 it was at 2%; it remained there until 1972, when it was 3%; by 1976 it was 5%! Since then it has eased somewhat, to 4% in 1980 and 1984, and down to 3% since then, mostly due to successful lobbying (no federal court of final jurisdiction has ever thrown out a retention test, although the Maine Green Party is making a good attempt).

It's obvious why raising the vote test injures minor parties. When the percentage of the vote that a party must poll is only 1%, it has a good chance of meeting the test, and then is freed from having to repeat the petition all over again. Setting the vote test higher increases the amount of petitioning that must be done.

Data showing that the ballot access requirements of today are far harsher than they were before 1964 has not previously been available. Third Parties in America, a respected book written by three political science professors in 1984, says "Ballot access laws are now as lenient as they have ever been in this century." This is utterly inaccurate, but until now, there has been no reference work on this subject to establish the truth. The Brennan Center hopes to publish the study in a few months.


Earlier this year, the Arkansas legislature passed HB 1776, which requires minor party and independent presidential candidates to file a petition signed by 1,000 voters, in order to be on the ballot. The petition is due August 1.

This is a "good news, bad news" development. Previously, minor party and independent candidates could get on the ballot with no petition whatsoever, so the new bill increases the national petitioning burden for presidential candidates.

However, the only reason that such easy ballot access existed, was that Arkansas had no procedure in its election law for independent presidential candidates to get on the ballot. Ever since 1974, when the U.S. Supreme Court issued Storer v Brown, it has been settled that every state must have such procedures. Arkansas allowed independent presidential candidates on the ballot with no petition, only because there was a gap in its law, not because the legislature had ever mandated such easy access.

When the legislature did consider passing procedures for independent presidential candidates back in 1981, the bill which almost passed required 10,000 signatures. So, it's good to have a law on the subject on the books that is relatively benign. In Arkansas, 1,000 signatures is only .07% of the number of registered voters.

Can the Arkansas presidential petition be circulated before the group has made a final choice of who its presidential and vice-presidential candidate will be? The law itself is not clear. Ann Purvis, attorney to the Elections Division of the Arkansas Secretary of State, says she will study the question.

Fusion Banned

The Arkansas legislature also passed HB 1026 this year, which bans the practice of permitting two parties to jointly nominate the same candidate. On April 28, 1997, the U.S. Supreme Court had said states are free to ban "fusion".


Last month, the Commission to Study the Election Laws recommended that the legislature lower the number of signatures for a new party to get on the ballot from 8,000 signatures, to 3% of the last vote cast for U.S. House. The Commission also voted to recommend that the independent candidate petition be lowered from 5% of the last U.S. House vote, to 3%. 3% in 1998 would be 6,300 signatures. Under current law, Wyoming requires more signatures (as a percentage of the registered voters) for a minor party or independent candidate to get on for president, than any other state, so the change is welcome. Ironically, however, even if the change is made, Wyoming will still have the highest requirement of the 50 states (for president, not for other office).

Initially, the Commission had leaned toward increasing the number of signatures for new parties to 5% of the last vote for U.S. House. However, after this idea was criticized by an editorial in the Casper Star-Tribune (the state's largest newspaper), the Commission reversed itself and voted to lower the requirements. The Commission says its primary intent is to equalize the two requirements.

The Commission also recommends that the vote test for a party to remain on the ballot be expanded from 3% for U.S. House, to 3% for any of these three offices: U.S. House, Governor, or Secretary of State. Obviously, the more offices whose vote "counts" toward retaining a spot on the ballot, the easier it is for a party to remain on the ballot. Activists tried to persuade the Commission to provide that the vote for any statewide office should "count", but were not successful.

The Commission also suggests that write-in candidates who wish their write-in tallied, be given a chance to file a declaration of write-in candidacy. However, they would be required to pay the same filing fee that candidates who are on the ballot must pay (the fee is $200 for statewide office, but there is no fee for president).

The write-in change would be most beneficial for presidential candidates. For example, 1996 Green Party presidential candidate Ralph Nader wasn't on the Wyoming ballot last year. Although 466 Wyoming voters cast a write-in vote for him, the state didn't print an official tally of his write-ins in its official election returns, so they were never included in Nader's "official" national vote total. A write-in filing procedure would mean that such candidates in the future could get credit for their write-ins.


Representative Todd Platts (R-York) has agreed to sponsor a bill later this year, to drastically improve ballot access in Pennsylvania. The bill would lower the number of signatures from 2% of the winning candidate's vote, to one-tenth of 1% of the total vote cast for the office. The bill would only apply to statewide and U.S. House candidates. The bill would require 4,502 signatures for president in 2000.

Also, the bill would change the retention test for parties, from registration of 15% of the state total, to 1%. Even a 1% registration test is very difficult for minor parties to meet. Massachusetts has had a 1% registration test alternative for a party to be on the ballot automatically, since 1990, but no minor party has been able to comply with it. Nevertheless, 1% is a tremendous improvement over 15%.

The bill is being backed by a coalition of the state's minor parties. To help pass the bill, contact Tom Linzey at (717)-530-0931, or A rally for the bill will be held in the Capitol Rotunda on September 23 at 11:30 a.m.

Representative Dick Hess (R-Bedford) has promised the Prohibition Party to introduce a bill, providing that write-in candidates may file a write-in declaration of candidacy, so that those candidates will receive an official write-in vote tally. Pennsylvania permits write-ins but the state almost never tallies the totals, although it made an exception for Ralph Nader last year.


Several months ago, Congressman Ron Paul (R-Texas) indicated he would introduce bills to outlaw restrictive ballot access laws, and to mandate that significant minor party and independent presidential candidates be invited into the general election debates. Paul was the Libertarian presidential candidate in 1988, and knows a great deal about these issues.

Similar bills had been introduced in 1993 by Congressman Tim Penny (D-Minnesota), who retired. The ballot access bill had also been introduced in 1985, 1987 and 1989 by Congressman John Conyers (D-Michigan).

The ballot access bill will probably be introduced next week. The debates bill will be delayed, because Paul and proponents of the bill still have not come to agreement on details of the bill. The Penny bill debates bill was relatively moderate. It said that the major party presidential nominees must agree to two debates with minor party and independent presidential candidates who were on the ballot in at least 40 states and had raised at least $500,000. If the major party candidates did not agree, they would lose general election public funding.

Paul wants to toughen this proposal, by preventing all general election presidential debates at which significant minor party and independent candidates are not invited (again, on pain of losing public funding). Paul worries that if the bill written in 1993 were passed, the two debates at which significant minor party and independent candidates were invited, might not be the ones broadcast on major TV networks. On the other hand, experienced proponents of the debate bill are concerned that the proposed Paul version might violate the First Amendment. Until the problem is resolved, the debates bill isn't ready for introduction.

Paul had expected to introduce both bills simultaneously, but now it is likely that the ballot access bill will be introduced next week, and the debates bill when it is ready.


SB 573, which would have made improvements to the ballot access laws, failed to pass the House, and now the legislature has adjourned for the year. It is possible the bill can be voted on next year. The legislature returns in May 1998. The bill would have moved the petition deadline for new parties from May to July, eased the wording on the petition, and permitted voters to register as members of parties which are not currently "qualified".


(See also this update.)

The U.S. Supreme Court will hear oral arguments in Arkansas Educational TV v Forbes, no. 96-779, on October 8.

This is the most important Supreme Court case for minor parties in at least five years. It concerns whether government-owned media can sponsor a debate and invite only the Democratic and Republican candidates. There has never been a U.S. Supreme Court case involving the rights of minor parties or independent candidates which has attracted so many amicus curiae briefs; nor has there ever been a U.S. Supreme Court hearing on any case involving candidate debates.


On August 12, the Georgia Supreme Court announced that it will hear Esco v Secretary of State, S97A-1483, over whether the state can force write-in candidates to publish advance notice in newspapers that they intend to be write-in candidates. The hearing will be September 9. The Georgia Constitution, as interpreted by past State Supreme Court decisions, is very protective of write-in voting. However, the lower court had upheld the requirement.

No other state forces write-in candidates to publish a legal notice in newspapers. The requirement is obsolete, since the state also requires write-in candidates to file a declaration of write-in candidacy. The state law is responsible for the fact that Ralph Nader write-ins for president in last year's election were not tallied.


On August 19, the three 9th circuit judges who are pondering the constitutionality of state legislative term limits, asked both sides to submit a supplemental brief. This is unusual, since the hearing has already been held. The judges want this question answered: "Assuming that Initiative Measure 140, by imposing a lifetime ban on incumbents seeking legislative office, severely limits the voters' right to vote for whomever they choose, is the facial ambiguity of the Measure, as recognized by the California Supreme Court, relevant to its constitutionality?"

The supplemental briefs were submitted on August 29. They assume that the judges are pondering whether to declare the legislative term limits law unconstitutional because it is vague. It is true that, as passed by the voters, it didn't specify whether the ban on running for re-election is for a limited period of time, or whether it is for the lifetime of a particular incumbent legislator. After the voters passed the law, the State Supreme Court interpreted the law to mean that it was for the lifetime of the individual.


(See also this update.)

On October 14, there will be a hearing in LaRouche v Fowler, no. 96-7191, in the U.S. Court of Appeals, D.C. circuit. This issue is whether the Democratic National Committee was required to get permission from the U.S. Justice Department Voting Rights Section, before promulgating a party rule which said that votes for Lyndon LaRouche in 1996 presidential primaries did not count.

In March 1996 the U.S. Supreme Court had ruled in Morse v Republican Party of Virginia that parties, as well as governments, must ask for permission to change voting rules in states covered by the Voting Rights Act. LaRouche won enough votes in Louisiana to get one delegate to the Democratic national convention, but under the party rule, which was not pre-cleared by the Justice Department, he was deprived of that one delegate.


The subtitle of this book is "How to rebuild our country so that the politics aren't broken and politicians aren't fixed". The paperback edition is 247 pages and is $14.95. W. W. Norton & Co., 500 Fifth Ave., N.Y., N.Y. 10110, (212)-354-5500.

Sam Smith is a longtime activist and journalist who has covered politics for 30 years. He is also the editor of The Progressive Review, and has been active in the Green Party, the Statehood Party, the National Drug Strategies Network, the D.C. Community Humanities Council and the Capitol Hill Arts Workshop. The book presents ideas to restore the U.S. political process. Smith has an unusual ability to understand and appreciate what is valuable in each political ideology. The substantive chapters, which talk about solutions to major national social problems, blend what many will perceive to be the best ideas of every political group. Topics include campaign finance laws, race relations and the whole concept of race, the environment, drug law policy, civil liberties and criminal justice issues.

The book is optimistic, setting forth many examples from the past in which small, dedicated groups have made immense gains in improving life in the U.S., and debunking the idea that activism cannot succeed. On the other hand, the book doesn't avoid the "dark side" of U.S. politics, and discusses the alarming extent to which assassinations, covert government programs, and corruption, have been responsible for setting policy.

Even those who don't agree with the chapters on the substance of what policy should be, will appreciate the chapters on the U.S. political process. The book lays heavy stress on the need for proportional representation, written in a style which is clear, compelling and humorous. Nothing about the book is boring or difficult to read. The book also contains a useful directory of groups and publications which are working to solve the problems discussed in the book.


1. Colorado: on August 11, the state asked the 10th circuit for a rehearing in American Constitutional Law Foundation v Buckley, no. 94-1581. The court had ruled that the state cannot force petition circulators to be registered voters.

2. Kentucky: In response to the lawsuit Republican Party of Kentucky v Patton, 97-55, eastern district, the state recently conceded that state law (which tells a voter that he or she must sit out one primary, in order to change party affiliation) is unconstitutional. The law will not be enforced and the legislature is expected to change it soon.

3. Louisiana: on October 6, the U.S. Supreme Court will hear oral arguments in Foster v Love, no. 96-670, over whether Louisiana is violating federal law by holding its congressional elections in September instead of November. The 5th circuit had ruled that the state must conform to a federal law which says that states must hold congressional elections in November.

4. Washington: on July 7, a lawsuit was filed against state law which requires initiative proponents to file frequent reports listing the names, addresses, and amounts of compensation received, of all paid circulators. WIN v Warheit, c97-05427-RJB. Similar laws were struck down recently in Colorado.


Every twenty years, Florida appoints 37 people to a Commission to Review the State Constitution. They hold hearings around the state, and then suggest proposals for amending the Constitution which go on the ballot, to be voted up or down by the voters. Hearings are underway now. At every hearing so far, activists (including John B. Anderson, independent presidential candidate in 1980 who now lives in Florida) have appeared to suggest that ballot access be improved in Florida. Some of the commissioners appear interested. By November, the Commission will issue a report, and it is hoped that they include ballot access reform.


The Clerk of the U.S. House of Representatives has published Statistics of the Presidential and Congressional Election of November 5, 1996, a free 83 page book which gives the official vote for all candidates for federal office in the general election of 1996. To obtain a copy, call the Clerk at (212)-225-7000. Web update: the correct number is area code 202, not 212. A better number to call is the publications department of the Clerk's office, at 202-226-5200.

Unfortunately, the book contains the same error that it has made in every edition starting in 1988. It says that the various minor party candidates for president and Congress in New Jersey were on the ballot with the label "independent", and it omits these candidates from the proper party columns in its summary charts (the summary charts list the total national vote for each party, for president and for each house of Congress).

All minor party candidates in 1996 and previous elections had their party labels on the New Jersey ballot. The error keeps being repeated because the New Jersey Secretary of State, since 1988, has omitted all party labels for minor parties from the official state election returns. Even though the Clerk of the U.S. House was aware that the party labels really were on the New Jersey ballot (the New Jersey Secretary of State wrote a letter to the Clerk, verifying this information), the Clerk ignored the letter and published misinformation.

Nevertheless, the book is very valuable. It is the only publication (other than B.A.N.) which tallies up the vote for each party, for each house of Congress. The Clerk has published the booklet every two years since 1920.


The tally for president, November 1996 election, continues to grow. Timothy San Souci, a Missouri researcher, recently visited the Vermont Secretary of State's office and examined official vote returns submitted by town clerks. He found 14 write-ins for Charles Collins, an independent candidate for president, and one for Jerome White, presidential candidate of the Socialist Equality Party.


See this note about tables.

Alabama 35,973 35,973 0 0 0 0 0 Jun 29
Alaska (reg.) 6,403 #2,453 0 already on 0 0 already on June 1
Arizona est. (reg.) 15,000 est #8,000 already on already on 0 0 3,000 May 16
Arkansas 26,528 10,000 already on 0 0 0 0 May 4
California (reg) 89,007 156,621 already on already on already on already on already on Dec 31, '97
Colorado no procedure #1,000 can't start can't start can't start can't start can't start Jul 14
Connecticut no procedure #7,500 can't start can't start can't start already on can't start Aug 7
Delaware est. (reg.) 200 4,000 already on already on already on already on 20 Aug 22
D.C. no procedure #3,000 can't start can't start can't start can't start can't start Aug 26
Florida 242,337 242,337 can't start can't start can't start can't start can't start Jul 14
Georgia 38,113 #38,113 already on already on 0 0 0 Jul 14
Hawaii 5,450 25 0 *1,200 0 0 already on Apr 2
Idaho 9,835 1,000 already on already on already on already on 0 Aug 31
Illinois no procedure #25,000 already on can't start can't start can't start can't start Aug 3
Indiana no procedure #29,822 0 already on 0 0 0 Jul 15
Iowa no procedure #1,500 already on 0 0 0 0 Aug 14
Kansas 16,418 5,000 already on already on 0 0 0 Jun 1
Kentucky no procedure #5,000 disputed 0 0 0 0 Aug 27
Louisiana est. (reg) 128,000 0 already on 400 10 10 50 Jul 1
Maine 30,288 #4,000 already on 0 0 0 in court Dec 12, '97
Maryland (10,000) est. 78,000 0 0 0 0 0 Aug 3
Massachusetts est. (reg) 32,000 #10,000 already on can't start can't start can't start can't start Aug 18
Michigan 30,891 30,891 already on already on 0 0 0 Jul 16
Minnesota 109,487 #2,000 already on 0 0 0 0 Jun 1
Mississippi just be org. #1,000 already on already on already on already on 0 Apr 3
Missouri 10,000 10,000 already on already on 0 already on 0 Jul 27
Montana 16,039 #10,097 already on already on already on 0 0 Mar 12
Nebraska 5,741 2,000 already on 0 0 0 0 Aug 1
Nevada 4,498 4,498 already on already on already on already on already on Jul 9
New Hampshire 14,901 #3,000 0 0 0 0 0 Aug 5
New Jersey no procedure #800 0 0 0 0 0 *July 27
New Mexico (2,781) 14,029 already on already on 0 0 already on Apr 7
New York no procedure #15,000 already on can't start can't start can't start can't start Aug 18
North Carolina 51,324 est. 82,000 0 already on 0 0 0 May 18
North Dakota 7,000 1,000 already on 0 0 0 0 Apr 3
Ohio 45,345 5,000 already on 0 *3,000 0 0 Jan 5
Oklahoma 60,336 0 already on 0 0 0 0 Jun 1
Oregon 18,282 13,292 already on already on already on 0 already on Aug 25
Pennsylvania no procedure est. #25,000 can't start can't start can't start can't start can't start Aug 3
Rhode Island 18,069 #1,000 0 0 0 0 0 Aug 1
South Carolina 10,000 10,000 already on already on already on already on 0 May 3
South Dakota 7,792 #3,117 0 already on 0 0 0 Apr 7
Tennessee 37,179 25 *8,700 0 0 0 0 Apr 8
Texas 43,963 43,963 can't start already on can't start can't start can't start May 24
Utah 2,000 #300 already on already on already on already on 550 Feb 15
Vermont just be org. #1,000 already on already on already on 0 already on Sep 17
Virginia no procedure est. 15,500 already on can't start can't start can't start can't start in court
Washington no procedure #200 already on can't start can't start can't start can't start Jul 3
West Virginia no procedure #5,957 0 already on 0 0 0 May 11
Wisconsin 10,000 #2,000 already on already on 0 already on already on Jun 1
Wyoming 8,000 10,500 0 already on 0 0 *275 Jun 1
TOTAL STATES ON 31 24 10 10 8

"FULL PARTY REQ." means a new party can qualify before it names candidates; () means party must also do candidate petitions. #candidate procedure lets candidate use a party label. "Deadline" refers to "full party procedure"; if state lacks one, it refers to candidate petition. * -- entry changed since last issue.


Ever since 1977, New Jersey law has provided that any gubernatorial candidate who raises enough contributions can participate in two general election debates, and may receive public financing for campaign expenses. Until this year, no one except the Democratic and Republican nominees had ever made a serious attempt to qualify.

This year, Libertarian gubernatorial nominee Murray Sabrin may have qualified. $210,000 in contributions were required by August 31, with a maximum of $2,100 from any single donor. Sabrin submitted evidence that he raised $236,050 by the deadline. His documents are being audited, with a final decision to be announced on September 8. Should Sabrin qualify, he may be entitled up to $334,100 in public funds. The law provides that the first $69,000 doesn't get matched, but further contributions are matched at the rate of $2 for every $1 raised privately.

The election for New Jersey state office is November 4, 1997. There are other vigorous minor party candidates in the race also, especially Conservative Richard Pezzullo and Green Madelyn Hoffman. Pezzullo raised $90,000, a substantial amount but not enough to qualify.


On August 21, 1997, the National Committee of the Patriot Party voted to dissolve the party, and to donate any party funds to the Reform Party. The action was no surprise, since the Patriot Party was formed in 1994 to build a party based on the Ross Perot movement, and ever since Perot launched the Reform Party in 1995, the Patriot Party hasn't had much reason to maintain separate existence.

The Patriot Party has had qualified status this year only in South Carolina, and in a few counties in Alabama. Both states permit qualified parties to change their names. In Alabama the party has already officially changed its name to "Reform". In South Carolina, where both the Patriot and Reform Parties are on the ballot, leaders of the South Carolina Patriot Party are mulling over the possibility that the party will become the Green Party.


Most of the nation's minor political parties have candidates for public office in 1997 elections. The only states with state elections this year are New Jersey and Virginia, but almost every state has local elections this year. The following parties have candidates in the states mentioned after the party names. The list is probably incomplete, and if any reader is aware of omissions, please inform B.A.N. Any additions or corrections will be carried in the next issue. Parties are listed in the order in which they ranked in the 1996 vote for president:

Reform: Connecticut, Minnesota, New Jersey, New York, Oregon, Virginia.

Green: California, Connecticut, Iowa, Minnesota, New Jersey, New Mexico, New York, North Carolina, Ohio, Pennsylvania, Virginia, Wisconsin.

Libertarian: California, Connecticut, Massachusetts, Michigan, New Hampshire, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Virginia, Washington.

Natural Law: New Jersey.

Peace & Freedom: California.

Socialist Workers: California, Massachusetts, Michigan, Minnesota, New Jersey, New York, Ohio, Texas, Utah.

Socialist: Iowa, New Jersey, New York, Oregon.

Parties that didn't have a presidential candidate of their own last year, but which do have candidates this year, are (listed alphabetically):

Conservative: New Jersey, New York.

Freedom: New York.

Liberal: New York.

New Party: Arkansas, Colorado, Illinois, Massachusetts, Minnesota, Montana, New York, Texas.

Revolutionary Workers: Michigan (the Revolutionary Workers League is a splinter from the Spartacist League).

Right to Life Party: New York.

Ballot Access News. is published by and copyright by Richard Winger Note: subscriptions are available!
Go back to the index.
Compilation copyright (c) 1997 Bob Bickford