|This issue was originally printed on white paper.|
On May 18, the U.S. Supreme Court finally released its opinion in Arkansas Educational TV Commission v Forbes, no. 96-779, over whether publicly-owned TV may sponsor debates and invite only the major party candidates. The opinion was by Anthony Kennedy and was signed by William Rehnquist, Antonin Scalia, Sandra O'Connor, Stephen Breyer, and Clarence Thomas. A dissent was written by John Paul Stevens and signed by David Souter and Ruth Ginsburg.
The news media reported the decision as a loss for minor party and independent candidates, and it was. However, overlooked was the fact that the majority opinion actually steered a middle path between the two opposing sides, and didn't agree with principles put forth by either side. As a consequence, in the future, when public TV sponsors candidate debates and fails to invite some ballot-qualified candidates, it will be possible for the excluded candidates to go directly to court (the Federal Communications Commission may be bypassed), and to argue that their campaign has appreciable voter support. If they persuade a court that this is true, they win the lawsuit.
The Bad News
1. Just because a candidate is listed on the ballot, it does not follow that he or she has a right to be included in debates sponsored by Public TV.
2. Furthermore, Public TV need not promulgate objective standards in advance, as to how a candidate may qualify for inclusion in the debate (however, the executive or legislative branches of government are free to require that TV stations, public or private, use objective criteria).
3. Anyone who looks at the facts of the Forbes case to differentiate Forbes' campaign from another campaign, will find vague and contradictory "facts" in that decision.
The Good News
1. Candidate debates are different from all other Public TV programming. No one has a constitutional right to appear in Public TV programs in general; but candidate debates are an exception.
2. If Public TV sponsors a candidate debate and excludes a candidate who has generated appreciable popular support, such behavior violates the First Amendment.
Even though the decision is disappointing to those who believe that the Constitution demands that government not discriminate for or against any ballot-listed candidate, it still is far more favorable to minor party and independent candidates than the official views of Attorney General Janet Reno, the Federal Communications Commission, twenty state governments, and some lower courts.
The federal government, in an amicus brief, had argued that: "The First Amendment does not restrict a state-entity licensee's choice and selection of programming...The principal legal constraints on the news programming of a state-entity broadcaster therefore derive not from the First Amendment, but from the Communications Act, which directs all broadcasters, public and private, to exercise reasonable editorial discretion in serving the public interest."
Dan Lungren, California Attorney General, had filed an amicus brief, signed by 19 other states, saying, "The government affirmatively invited the particular candidates and organized the debate in order to inform its audience about the newsworthy subject of the congressional elections and the leading candidates' positions and personas ... the state's message was 'these people are newsworthy' ... This is the same basic message that a university conveys when it includes in its curriculum a study of Socrates and Plato."
The Eleventh Circuit, and five judges of the Eighth Circuit, had previously written that debates are no different than any other public television programming, and that the First Amendment provides no protection for candidates excluded from government-sponsored debates.
What does "Appreciable Public Support" Mean?
Kennedy's decision is vague, but he ruled against Ralph Forbes, an independent candidate for the U.S. House of Representatives from Arkansas in 1992, because, he said, Forbes "generated no appreciable public interest ... the voters lacked interest in his candidacy...he had little, if any, financial support, failing to report campaign finances to the FEC...there was no campaign headquarters other than his house." He implied that Forbes did not have a "compelling personality" nor an "exemplary campaign organization". He said Forbes was "a perennial candidate who had sought, without success, a number of elected offices in Arkansas."
Kennedy did not say anything about Forbes' political views, but it is very likely that Kennedy and some other justices were prejudiced against Forbes, because the Washington Post reported the day after the hearing (back in October 1997) that Forbes had once been an activist in one of the U.S. Nazi Parties. Other newspapers followed suit, and it became almost routine than this was mentioned in newspaper articles about the lawsuit.
Stevens' dissent said that: (1) the Constitution requires Public TV to promulgate objective, specific criteria in advance, as to how much support is required for a candidate to obtain an invitation; (2) Forbes' campaign was vigorous enough that Forbes should have been included.
Fortunately, the point about objective, specific criteria is generally moot. In 1996, long after this case was underway, the Federal Election Commission amended its regulations to require that all candidate debates (for federal office) "must use pre-established objective criteria to determine which candidates may participate in a debate. For general election debates, staging organizations shall not use nomination by a particular political party as the sole objective criterion to determine whether to include a candidate in a debate." This regulation may be found at 11 CFR Ch. 1 (1998 edition), §110.13.
The dissent contains much more factual information about Forbes' campaign than the majority opinion. It is plain to any disinterested reader that the majority opinion was grossly unfair to Forbes. Forbes collected 6,000 signatures to be on the ballot (2,000 signatures were required). He was only the third candidate for U.S. House of Representatives to be on the Arkansas ballot as a minor party or independent candidate, since before World War II. He raised $9,700, more than one of the Republican nominees for U.S. House in Arkansas received in 1992 (that Republican raised only $6,000, but was invited into the Public TV debate). When he had run in the Republican primary for Lieutenant Governor in 1990, he had polled 47% of the vote in a 3-way contest, placing first (however, he lost the Republican primary run-off).
Since these facts were not mentioned in the majority opinion, and not all of them were mentioned in the dissent either, they aren't part of the rationale for the opinion itself. However, all of these facts were in the briefs, and it is a miscarriage of justice that Forbes, who had a more vigorous campaign than many minor party and independent candidates who have been invited into TV candidate debates with their major party opponents, was characterized so poorly. If Forbes had won the case, he would have been entitled to damages from Arkansas Educational TV, and it is likely that the Supreme Court majority simply didn't desire that outcome.
Why Can't All Ballot-Qualified Candidates be Invited to Debate?
The principle that all ballot-qualified candidates should be invited into Public TV-sponsored debates was rejected because some ballots have too many candidates for an orderly debate to take place.
Kennedy's specific examples were: (1) that at each of the last three presidential elections, there were at least 22 candidates on the ballot in at least one state; (2) that U.S. House general elections "commonly" have "between six and eleven candidates"; and (3) there were 19 candidates on the ballot for Governor of New Jersey in 1993.
Two of these examples are inaccurate. The claim that there were at least 22 presidential candidates on the ballot in each of the last three general elections in at least one state, is factually incorrect. There were 19 in 1988 and 21 in 1996. Kennedy erred for 1996 because he counted "none of the above" (which is on the Nevada ballot) as a candidate. He erred for 1988 because he trusted a source, a book titled Let America Decide by Professor Anthony Corrado, which is mistaken (Corrado has acknowledged that the correct number is 19).
More significantly, the statistic is irrelevant. A candidate for president is not "on the ballot" unless he or she is on the ballot in enough states to win a majority in the electoral college. By that criteria, there has never been a presidential election in U.S. history in which more than seven candidates were "on the ballot" (there have never been more than six, except for 1976 and 1980).
As to the majority's statement that in 1996 it was "common" for there to be between 6 and 11 candidates for the U.S. House, there were only 13 such races (3% of the national total of 435) in 1996. Only one race had more than eight.
The statement that there were 19 candidates on in New Jersey for governor in 1993 is accurate. That was the most crowded ballot ever in U.S. history for a regularly-scheduled partisan statewide general election.
Two debate lawsuits involving the 1996 election are still pending. One is a 1996 case from Iowa, involving a Natural Law Party candidate for the U.S. House who did have a substantial campaign. That case, Marcus v Iowa Public TV, no. 96-3645, will now be heard in the 8th circuit. It had been on hold, pending the U.S. Supreme Court decision.
The other case is Ross Perot's lawsuit against the FEC for not enforcing its own guidelines. Perot '96 v FEC, 1:98cv-1022, in federal court in D.C. The Natural Law Party has a similar case in the same court.
As for Ralph Forbes, he will be the Reform Party's candidate for the U.S. House in Arkansas' 3rd district this year (he ran unopposed in that party's primary). There is no Democrat in the race. Arkansas Educational TV says it hasn't decided whether it will sponsor any debates for congressional candidates this year.
Anyone may obtain a free copy of the decision from the Clerk of the U.S. Supreme Court, Washington DC 20543. Telephone (202)-479-3211 to request one. The decision can also be read on the world-wide web at http://supct.law.cornell.edu/supct/html/96-779.ZS.html.
On May 21, Maryland Governor Parris Glendening signed SB 123. The candidate petition drops from 3% of the number of registered voters to 1%. The registration test for a party to avoid these petitions drops from 10% to 1%. The vote test for a party to continue to be listed on voter registration forms drops from an average of 3% for all statewide races, to 1% for any statewide race.
As a result of this change, the median percentage of support in the U.S. for a party to retain its place on the ballot drops from 3%, to 2%, the lowest it has been since 1968. This fact can be useful, in lobbying for lower retention requirements in such states as Alabama (which has a 20% vote test) and Pennsylvania (which has a 15% registration test).
On May 11, the Pennsylvania Supreme Court upheld state law that requires statewide primary candidates for Governor to obtain 100 signatures from each of 10 counties (also, such candidates need 2,000 signatures overall, but that was not challenged). Nomination Petition of Phil Berg, no. 39 m.d. appeal 1998.
The opinion is at variance with a 1969 U.S. Supreme Court opinion, as well as opinions of eleven other federal courts, including one in Pennsylvania itself. In 1969 the U.S. Supreme Court had ruled in Moore v Ogilvie (an Illinois case), that county distribution requirements for statewide candidate and new party petitions are unconstitutional, since counties have unequal populations. Under the Pennsylvania law, all of the voters of Philadelphia are unable to place a candidate on the Democratic primary ballot, since Philadelphia is contained within a single county (which is so populous that it has three members of the U.S. House). Yet the voters of the rural 5th congressional district are able to place such a candidate on the primary ballot, since the 5th district has more than ten counties in it. Thus a smaller population group has more power than a larger population group.
Similar laws have been voided by the 7th circuit (Illinois), the 9th circuit (Idaho), the 10th circuit (Wyoming), and U.S. District Courts in Michigan, New York, Ohio, Massachusetts, Hawaii, Rhode Island, and Nebraska. Pennsylvania is the only state that still has a county distribution requirement for candidates.
Worse yet, even the Pennsylvania law itself was held unconstitutional in federal court in 1979, in a case brought by a candidate for U.S. Senate. In response, the legislature deleted the requirement for presidential and U.S. Senate candidates, but left it in the law for gubernatorial and judicial candidates.
Phil Berg, the candidate who brought the lawsuit, also filed in federal court, but the 3rd circuit ruled that since the constitutional claim was pending in state court, federal courts couldn't hear it. Berg v Kane, 98-1270.
In the future, another gubernatorial candidate might get a ruling on the merits in federal court, by avoiding state court. Berg may ask the U.S. Supreme Court to reverse the Pennsylvania Supreme Court. He need not decide until mid-August.
The Pennsylvania Supreme Court decision fails to mention any of the precedents on this issue, except for the 1969 U.S. Supreme Court precedent. The Pennsylvania Supreme Court claimed that the 1969 precedent doesn't apply because the Illinois struck down in 1969 was so draconian. But that court ignored the fact that a much easier law was then enacted in Illinois (which required that signatures only be obtained in two counties), which was still held unconstitutional, in 1975, by the 7th circuit. The U.S. Supreme Court was given an opportunity to upset that decision, but it declined. The Pennsylvania Supreme Court also failed to mention the federal case striking down the Pennsylvania law in 1979. Decisions which fail to mention important, relevant precedents are commonly thought to be dishonest.
On May 27, U.S. District Court Judge Ernest C. Torres, a Reagan appointee, ruled that a ballot-qualified party has a First Amendment right to decide for itself whether members of other parties can vote in its primary. Cool Moose Party v State of Rhode Island, no. c.a.96-514-T.
The Cool Moose Party is entitled to its own primary in Rhode Island, since it polled over 5% of the vote for Governor in 1994. Although Rhode Island law already permitted any qualified party to decide for itself whether independent voters should vote in its primary, the Cool Moose Party also wanted to invite registered members of the other qualified parties (Democratic, Republican and Reform) to vote in its primaries. The judge agreed with the party, citing the U.S. Supreme Court decision Tashjian v Republican Party of Connecticut, the 1986 U.S. Supreme Court decision which said that parties have the right to decide for themselves who should vote in their primaries.
Any day now, the two bills (sponsored by Congressman Ron Paul of Texas) which help minor party and independent candidates may receive a vote on the floor of the U.S. House. They will probably be offered as amendments to one of the campaign finance bills. It isn't likely that either one will be attached to a campaign finance bill, but at least there will be a roll-call vote, so that each member of the U.S. House voting that day, will vote "Aye" or "Nay". The two bills are HR 2477, which outlaws restrictive ballot access laws in federal elections, and HR 2478, which provides that presidential candidates on the ballot in 40 states must be invited into presidential general election debates.
On May 11, U.S. District Court Judge Frank Polozola ruled that Louisiana should hold its first congressional election this year on November 3. If anyone gets 50% of the vote, that person is elected on November 3. Otherwise, there will be a run-off between the two highest vote-getters in December.
The voters who brought the original lawsuit, and who favor a closed primary, have filed an appeal with the 5th circuit. They desire a closed primary in September, and a general election in November.
The voters of Florida will vote in November on whether to abolish mandatory petitions for minor party and independent candidates. The question will be on the ballot as Constitutional Amendment Eleven. The campaign to pass it will be helped by the fact that this year, there is a contest between a Democrat and a Republican for the U.S. House in only 5 of Florida's 23 congressional districts. The other 18 districts will have only a single candidate in November (except that in two of those districts, there will be a Reform Party candidate if enough signatures can be obtained by mid-July).
"???" = "undetermined". "OTHER" refers to Peace & Freedom in California, Patriot in South Carolina, Indp. Amer. Party and Indp. Party in Utah.
|Dem.||Rep.||Indp. & Misc.||US Tax||Reform||Libt||Green||Nat Law||other|
|South Dakota||175,916||215,908||49,456||?||56||882||?||?||- -|
|West Virginia||630,915||294,306||77,493||?||?||322||?||?||- -|
The May 7, 1998 B.A.N. had registration data from late 1997 or early 1998 for most states which tabulate this data. However, that issue lacked any data for Nebraska, South Dakota, and West Virginia, since those states hadn't taken a tally since 1996. Since then, those three states have taken a tally, which are reported above. In addition, more information is now available for Louisiana, and more up-to-date data for California, so that is shown also. "Total" above is the combined total of this data, plus what was reported in the last issue, so that 25 states & D.C. are included. This includes all states which tabulate registration by party except Florida and New Hampshire (since those two states haven't taken a tally since 1996, and won't until Sept. 1998). "Other" for California is Peace & Freedom.
Totals above can be compared with totals from the same 25 states plus D.C. as of Nov. 1996, which are discussed below.
The registration data above is for late 1997 and early 1998 tallies. The same states reported these totals in November 1996: Democratic 33,011,538 (45.79%); Republican 23,737,812 (32.93%); independent & misc. 14,071,493 (19.52%); US Taxpayers 306,821 (.43%); Reform 206,376 (.29%); Libertarian 153,829 (.21%); Green 111,468 (.15%); Natural Law 85,734 (.12%); other 406,244 (.56%).
The figures show that both major parties have lost ground in the last 18 months. The two major parties together dropped from 78.7% of the total, to 77.9%.
On May 19, SB 357 was defeated in the South Carolina House Judiciary Committee. It would have imposed filing fees on minor party and independent candidates. Under current law, the only candidates who pay filing fees are members of parties which nominate by primary. South Carolina law lets each party decide for itself whether to nominate by primary or convention. Usually the Democratic and Republican Parties nominate by primary, and other parties nominate by convention.
The bill was tabled, after representatives from the ACLU, the Libertarian, Natural Law, Patriot and U.S. Taxpayers Parties testifed against it. No one testified in favor.
On May 25, HB 1394 was signed into law. It provides for new congressional district boundaries. The old boundaries were invalidated by a court earlier this year, on the grounds that they were still racially gerrymandered.
The new plan might not be approved by the Voting Rights Section of the Justice Department, since it lowers the percentage of African-Americans in the 12th district to 36%. If the Justice Department hasn't acted by July 1, the federal court will impose its own map.
The Arca Foundation of Washington, D.C., has announced that it has made a grant to educate voters in New Mexico and Vermont about preference voting. The state legislatures of both states came fairly close to providing for preference voting ("instant run-off") this year, for statewide office. The educational campaign should help to pass the idea in those two states next year.
1. Arizona: HCR 2002, which would have required a two-thirds "yes" vote to pass certain initiatives, failed to pass the State Senate, and the legislature has now adjourned.
2. California: SB 1999, which moves the primary in presidential years from June to the first week in March, passed the State Senate on May 14, 26-10.
3. Missouri: SB 709, which provides for an April presidential primary, passed the legislature on the last day of the session. Missouri has never before had a presidential primary, except in 1988. The law applies to all parties which polled 2% for Governor at the last election, which presently includes the Democratic, Republican and Libertarian Parties.
4. Ohio: SB 134 was signed into law on April 13. It eases the state's "sore loser" law, so that it doesn't apply to non-partisan office.
5. Pennsylvania: HB 1918, the ballot access reform bill, still has not moved out of the House State Government Committee, but the chairman of that committee plans to hold a workshop on it this summer.
1. California: Peace & Freedom Party member David Blanco has filed a lawsuit against San Luis Obispo County elections officials, for failing to tell him about the need for a Declaration of Candidacy. As a result, he was omitted from the primary ballot as a candidate for Controller. Blanco v State, cv-98-2236 JMI (c.d.).
2. Maine: On May 15, a lawsuit was filed against state law which makes it illegal for anyone but a Maine registered voter to circulate an initiative petition. Initiative & Referendum Institute v Secretary of State, cv 98-104 BC (federal court).
3. Michigan: on May 14, the 6th circuit upheld the state's legislative term limits. Citizens for Legislative Choice v Miller, no. 98-1196.
4. New Jersey: the state is appealing Council of Alternative Parties v Hooks to the 3rd circuit. This is the case over the April petition deadline for non-presidential minor party and independent candidates.
5. Virginia: Back on November 15, 1997, U.S. District Court Judge Henry C. Morgan, a Bush appointee, upheld the June petition deadline for minor party and independent candidates for the legislature. He acknowledged that another federal judge had ruled that same deadline to be unconstitutional for statewide candidates, but said that the burden is less for legislature candidates. Edmonds v Gilmore, 988 F Supp 948 (e.d., Norfolk div.).
The 1998 petitioning chart for statewide office is omitted in this issue, but will be in the next issue. Significant developments are:
Reform Party: petitions to get the party on the ballot in North Carolina and Texas fell short. The party's statewide petition in Florida (which can be used to qualify some candidates for congress and state legislature if the statewide effort falls short) has 12,000 signatures.
Libertarian Party: is finished in New Hampshire.
Natural Law Party: has launched rapid-speed drives in Colorado and Michigan.
U.S.Taxpayers Party: petitions to get the party on the ballot in Oklahoma and Texas fell short. The Kansas and Maine petitions are finished.
Green Party: is now on the ballot in Colorado, and is finished in Maine.
On May 5, Ohio held a primary for the Reform Party. 2,009 voters voted for John Mitchel, the party's unopposed gubernatorial candidate. Any voter was free to vote in that primary (in Ohio, voters don't register into political parties on registration forms). On May 12, Nebraska held a Reform Party primary. Only 4 votes were cast for the party's only candidate for statewide office, Sam Spilker, who is running for State Treasurer.
Several minor parties have elected members to office in non-partisan elections in the last few months:
1. Conservative Party of New Jersey: elected Hosey Best to the Willingboro, N.J., School Board; elected Bernadette McCaskey to the Lodi, N.J. School Board.
2. Green Party: re-elected Joyce Brown to the Chapel Hill, N.C., city council; re-elected Cris Moore to the Santa Fe, N.M., city council; re-elected Krista Paradise to the Carbondale, Co., Board of Trustees.
3. Libertarian Party: elected David Atkinson to the Provincetown, Mass., Board of Selectmen; elected Craig Mathias to the Ashland, Mass., Board of Selectmen.
4. New Party: elected April Jones-White to the Hempstead, New York School Board; elected Donna Massey to the Pulaski County, Arkansas County Council. Also, Serena Cruz polled 35% for Multnomah County, Oregon county commission, district 3, and will be in a run-off in November.
5. U.S.Taxpayers Party: elected Michael Ritt to the Sauk County, Wisconsin Board of Supervisors.
Project Vote Smart, a non-partisan organization which has been working for several years to make it easier for voters to learn more about candidates, has a world wide web site that displays information about candidates. The address is http://www.vote-smart.org/. The site was active briefly in the 1996 election season but then fell into disuse, so this return is good news.
At the Indiana primary on May 5, there were three candidates in the Democratic primary for U.S. House, 6th district. The winner, with 50% of the vote, was Bobby Kern, age 34, who was convicted ten years ago for theft and forgery but acquitted on a charge of prostitution. He defeated the party-backed candidate, R. "Nag" Nagarajan, supposedly because Indiana voters are prejudiced against East Indian surnames, and also because Kern was listed first on the ballot.
Now the Democratic Party has asked the state Recount Commission to remove Kern from the general election ballot. The basis is that he re-registered to vote, changing his name from Bobby Hidalgo to Bobby Kern, without getting a court order to change his name. However, Indiana law permits people to change their name without going to court, so the challenge will probably fail. If it fails, the Democratic Party may qualify a party-backed independent candidate.
On May 19, there was a special congressional election in Pennsylvania's First Congressional District, an overwhelmingly Democratic portion of Philadelphia. The official tally hasn't been released, but preliminary results were: Democratic 72%, Republican 15%, Reform 10%, Libertarian 3%. The Libertarian, John Featherman, had been endorsed by the Philadelphia Inquirer on May 15. The Reform Party candidate, Juanita Norwood, had been doing very well, until she was stricken with an aneurysm three weeks before the election.
Every year, the California state government prepares a Voters Pamphlet, which is mailed to all 14,000,000 registered voters. This year, for the first time, all candidates for statewide office not only have a paragraph explaining what they stand for, but pictures of each candidate as well. There are eight statewide offices and eight qualified parties in California.