Ballot Access News -- September 1, 1999

Volume 15, Number 6

This issue was originally printed on white paper.

Table of Contents
  12. ERRATA
  19. Subscription Information



On August 25, the First circuit affirmed the U.S. District Court decision in Cool Moose Party v Rhode Island Board of Elections, 98-1874. Political parties in the First Circuit now have the right to decide for themselves, whether members of other political parties may vote in that party's primary. This is the first time a court has ruled that a political party's rights extend that far.

Rhode Island law does not permit members of one party to vote in another party's primary, regardless of the wishes of the host party. But the judges said a political party has a right, under the First Amendment's freedom of association clause, to make that decision for itself. The decision was written by Judge Kermit Lipez (a Clinton appointee), and co-signed by Norman Stahl (Bush), and Frank Magill (Reagan).

The Cool Moose is one of four ballot-qualified parties in Rhode Island. It exists only in that state, and has no ties with any other minor party. It is a qualified party because its candidate for Governor, Robert J. Healey, polled over 5% in 1998 (he made a similar showing in 1994).

The decision found that there is no legitimate state interest in telling a political party that it can't invite members of other parties to vote in its primary. It says, "The State's ambiguous raiding rationale is entirely paternalistic", and then cited U.S. Supreme Court decisions on political party rights, that even if a party is foolish, it has a right to be foolish; the government has no right to protect a party from its own choices.

The Cool Moose Party had also argued for the right of a party to nominate by convention. The First Circuit refused to rule on this point, saying the issue had not been fully briefed in the lower court.

Implications for Ballot Access

Logically, since qualified political parties in the First Circuit now may decide whether members of other parties may vote in their primaries, it follows that members of other parties ought to have the right to sign petitions to get candidates of the host party on the party's primary ballot.

Maine and Massachusetts are both in the First Circuit, and those two states make it almost impossible for small qualified parties to nominate candidates in their own primaries. This is because most minor parties, even when they are qualified, have a relatively small number of registered voters. Yet Maine and Massachusetts laws on the number of signatures needed by individuals to qualify for a primary ballot do not take into account the size of a party. Instead, they simply mandate a certain number of signatures for each type of office, regardless of how few people are eligible to sign.

Massachusetts requires all candidates for Governor or U.S. Senator who are seeking a place on any party's primary ballot, to obtain 10,000 signatures. No one can sign except party members and independent voters.

In practice, this requirement has prevented all qualified minor parties in Massachusetts from running any candidates for those offices, since the requirement has been in force starting in 1972. With the Cool Moose decision in place, it should be possible for a qualified minor party to open its primary, and win the right for all voters to sign such petitions.

Similarly, in Maine, qualified minor party candidates for statewide office (other than president) need 2,000 signatures of party members only, a requirement that has kept all such candidates off the primary ballot of minor parties since 1977, when that law was passed.

The Cool Moose decision will make it possible for a small qualified party in Maine to open its primary, and then any voter should be able to sign primary petitions for candidates of that party.

Implications for Blanket Primaries

The decision also has implications for the struggle of some political parties which don't want members of other parties to vote in their primaries. The California Democratic, Republican, Libertarian and Peace & Freedom Parties are about to ask the U.S. Supreme Court to review California Democratic Party v Jones. The 9th circuit had ruled that the state may force parties to let outsiders vote in their primaries, a theory which is contradicted by this new First Circuit opinion. The existence of the split in the two circuits makes it even more likely that the U.S. Supreme Court will hear the California case.


For one week (August 23-27), a court order existed in New Jersey which would have eliminated preference for Republican and Democratic candidates on New Jersey general election ballots, for the November 2, 1999 election (New Jersey elects state legislators in odd years). However, when the dust had cleared, the status quo had reasserted itself.

On August 23, Monmouth County Superior Court Judge Clarkson Fisher, Jr., ordered that the New Jersey 1999 ballot for state legislative and county elections be restructured. In the counties which use mechanical voting machines, there could no longer be a column headed "Democratic" and a second column headed "Republican", as is usual (also usual is that all the other candidates are squeezed randomly into a column headed "Nomination by Petition").

Instead, all candidates, including the major party candidates, would have been positioned randomly in columns headed "Nominated by petition". New Jersey Conservative Party v Farmer, C233-99.

But on August 27, two Appellate Court judges, Steven Kleiner and Dennis Braithwait, reversed the order. The Conservative Party then appealed to a single Justice of the New Jersey Supreme Court, Daniel O'Hern, but he has not acted, and the state is now printing absentee ballots.

The basis for the lawsuit is an obscure 1920 law which says:

"19:5-1. No political party which fails to poll at any primary election at least 10% of the votes cast in the State for members of the General Assembly at the last election held for the election of all members of the General Assembly, shall be entitled to have a party column on the official ballot at the general election for which the primary election has been held."

"In such cases the names of the candidates so nominated at the primary election shall be printed in the column or columns designated "Nomination by petition" on the official ballot under the respective titles of office for which the nominations have been made, followed by the designation of the political party of which the candidates are members."

(In New Jersey, the lower house is called "The General Assembly").

At the primary in June 1999, only 162,261 Democrats, and only 121,981 Republicans, turned out to vote. The number of voters who turned out in November 1997 was 4,283,035. 10% of the November 1997 turnout is 428,304. So, Judge Fisher interpreted the law to mean that the Democratic and Republican Parties had lost their own party column in this year's general election.

Reversal of Fortune

However, on August 27, the Appellate Judges wrote, "The Chancery Division judge erred in interpreting 19:5-1."

"He concluded that the only primary election to be considered in determining eligibility for a party column on the official ballot is the primary election for General Assembly. We conclude that the language of 19:5-1 that says 'at any primary election for a general election' means that all primary elections are considered in deciding whether a group is a political party for party column purposes."

In other words, the Appellate Judges believe that a party may add together all the votes cast for all candidates for all offices in its primary. The Republicans and Democrats, according to the Appellate Judges, can avoid their problem by adding up the votes cast for their candidates for State Senate, County Clerk, Sheriff, Freeholder, and various other county and township offices on the ballot at the same primary, as well as the votes for General Assembly.

As a result of the Appellate decision, the New Jersey November 1999 ballot will look much as it did in 1998. SEE THE ILLUSTRATION AT RIGHT. (to be added to web page later --rab)


The Federal Election Commission recently invited public comment on a proposal that the FEC itself should mandate objective criteria on whom gets invited into general election presidential debates. Final figures show that 1,200 people sent e-mails, and 70 sent letters. A breakdown of the "pro" and "anti" ratio is still not available, but it will be soon.

Among those opposed was the Commission on Presidential Debates, headed by the most recent past chairs of the Democratic and Republican National Committees. The letter sent by the Commission on Presidential Debates did not acknowledge any of the arguments in favor of the proposal; it did not even acknowledge the point that donors to the Commission receive a tax exemption. Longstanding IRS rules require that tax-exempt organizations must be non-partisan.

The FEC may decide at its September 16 meeting whether to study the matter.


On July 30, U.S. District Court Judge Patrick Conmy, a Reagan appointee, upheld North Dakota's law that initiative petitioners must be residents of the state. He also ruled that the state may ban paying petition circulators on a per-signature basis. Initiative & Referendum Institute v Jaeger, A1-98-70.

The ruling says states may require petitioners to be residents, so that if a petitioner commits fraud, it will be easier to catch the petitioner. The ruling ignores the fact that it is legal in North Dakota for out-of-state residents to petition for new political parties. The decision is unusually short for a constitutional case; it is five pages. Plaintiffs are appealing.


On August 3, New York State Supreme Court Judge Joseph J. Dowd ruled that elections officials must count write-in votes for a candidate for a Community School Board in Brooklyn. Martinez v Board of Elections, Kings Co. 23461/99.

As a result, the candidate, Juan Martinez, won the election. Martinez had been erroneously kept off the ballot because elections officials thought he was not qualified to hold the position. They later acknowledged their mistake (three weeks after the election), but by then the ballots had already been counted, and Martinez write-ins had been ignored.


1. federal law: on August 16, a 3-judge U.S. District panel in Washington, D.C., heard LaRouche v Fowler, 96-1816, over whether the Democratic national committee should have asked for permission from the Justice Department before creating a 1996 rule that votes for Lyndon LaRouche in Democratic presidential primaries don't count toward electing delegates. The attorney for the Democratic Party asserted that if the law does require a national political party to obtain such permission, then it is unconstitutional. Without the rule, LaRouche would have had two delegates.

2. Alaska: on August 2, the 9th Circuit heard Ross v State of Alaska, 98-35720, the Republican Party's lawsuit against the blanket primary (the Alaska Independence & Libertarian Parties are co-plaintiffs). The judges seemed to feel that it was unfair that the Alaska Supreme Court had upheld the blanket primary in 1996 without allowing the parties a chance to present evidence against it.

Alaska (2): on July 14, the Alaska Civil Liberties Union asked the U.S. Supreme Court to hear ACLU v Alaska, 99-128, the case against the state's campaign finance law. The State Supreme Court had upheld it, even though it severely inhibits contributions (either money or in-kind) to political parties.

3. Guam: on July 2, the Democratic Party asked the U.S. Supreme Court to hear Gutierrez v Ada, 99-51, over whether its 1998 candidate for Governor was elected. Guam law requires a run-off for Governor if no one gets a majority. In 1998, Carl Gutierrez, the Democrat, got the most votes (there were only two candidates on the ballot). But the 9th circuit ruled there should be a run-off election since, if the people who cast a blank vote are counted, Gutierrez did not get a majority.

4. Hawaii: the U.S. Supreme Court will hear Rice v Cayetano, 98-818, on October 6. The issue is whether the state can restrict voting (for Office of Hawaiian Affairs) to citizens who had an ancestor living in Hawaii before 1776.

5. Missouri: the U.S. Supreme Court will hear Nixon v Shrink Missouri Government PAC, 98-963, on October 5. The issue is whether a state may set contribution limits for statewide office as low as $1,075.

6. New Jersey: on August 3, the State Court of Appeals ruled that petitioners can be kept out of privately-owned mall parking lots, unless they purchase a $1,000,000 liability insurance policy (New Jersey is a state in which the State Supreme Court had previously ruled that malls must permit petitioning). Green Party v Hartz Mountain Industries, A938-98-T2. The party is appealing.

7. Oregon: on June 9, U.S. District Court Judge Helen Frye upheld a law which makes it illegal for a minor party to nominate someone who had already lost a major party primary earlier. Cooley v Keisling, 45 F Supp 2d 818. The case had been brought by former Republican Congressman Wes Cooley, who lost the Republican primary in 1998 and was then nominated by the Reform Party.

8. Pennsylvania: on August 4 a Libertarian Party candidate for a county office in this year's elections filed a lawsuit against state law which requires the nominees of qualified minor parties to obtain as many as twenty times as many signatures as Democrats and Republicans need. Cavanaugh v Montgomery County, 99-13785, Court of Common Pleas.

9. Texas: on August 9, U.S. District Court Judge David Hittner, a Reagan appointee, ruled that the federal law providing that congressional elections shall be held on the first Tuesday after the first Monday in November does not prohibit a state from providing for "early voting". Texas sets up voting stations several weeks before election day, for the convenience of people who wish to vote before election day. Voting Integrity Project v Bomer, H-99-247, s.d. The judge said "election day" means the day the votes are counted, not the day the votes are cast. Plaintiffs are appealing.


America Votes 23 is now available from Congressional Quarterly for $147.00, plus shipping. To order, call (800)-638-1710.

Every other year, since 1954, a new volume of America Votes has been published (America Votes 23 covers the 1998 election). Election returns found in volumes of America Votes are more accurate than the official returns, since errors creep into the official returns, and the staff of America Votes double-checks official returns for addition errors. The book includes votes and percentages of the vote for all counties of the United States, maps, and many interesting and useful summary charts.


On August 18, North Dakota Secretary of State Alvin Jaeger ruled that petitions to create a new party cannot circulate in the state, except during the three months just prior to the deadline. For 2000, this means that petitions must circulate from January 15 to April 14. Never before have parties in North Dakota been forced to complete their petition in the winter. There is a 1981 law which requires petitions to be circulated in the 90 days prior to a deadline, but previous Secretaries of State did not believe that law applies to new party petitions. A separate law says that initiative petitions (which need 12,000 signatures) can be circulated for a full year.

Although Republican and Democratic candidates must circulate petitions during that period, none of them ever needs more than 300 signatures; and they don't need any signatures if they have the support of the party organization. New parties need 7,000.

Secretary of State Jaeger, in his letter revealing his decision, said the idea that the state's winter weather makes petitioning impractical "displays an appalling lack of understanding and knowledge of the weather in North Dakota; it is insulting to those of us who have lived in North Dakota all our lives and have somehow managed to survive the elements."

The Libertarian Party plans to sue. The Secretary's decision forces outdoor petitioning to be carried out in temperatures that are frequently 20 degrees below zero. Also, by refusing to let parties circulate a petition to qualify themselves any earlier, the ruling bars new parties from participating in special legislative elections which may occur in odd years. Only six other states set a "start" date for similar petitions.


Kentucky elects its governor this November. Four candidates will appear on the ballot, the nominees of the Democratic, Republican, Reform and Natural Law Parties. This is the first time any minor party has run a candidate for Governor of Kentucky since 1971.


1. On March 10, Utah SB 91 was signed into law. It sets up procedures for the state's first-ever government-administered presidential primaries. All qualified parties which were in existence on June 1, 1999, were given the chance to say whether they desire a presidential primary or not. The Democratic, Republican and Independent American Parties chose to have one; the Libertarian Party chose not to have one.

2. Last month the Democratic National Committee told the state Democratic Parties of Arizona, Michigan, South Carolina and Washington, that it will not recognize their presidential primaries, since they are scheduled for February and the party doesn't permit any binding presidential primaries (except New Hampshire's) until March. The state parties have the choice of treating the primaries as non-binding "beauty contests", or using them to elect delegates and then trying to persuade the Democratic convention itself to seat those delegates and overrule the national committee.


1. Arkansas: On August 20, Rep. Courtney Sheppard requested an Attorney General's Opinion, as to whether the petition requirement for new parties in the state is 10,000 signatures, or 21,181 signatures. The law says 21,181 are required, but that law was declared unconstitutional in 1996; yet the Secretary of State insists she will enforce it anyway.

2. California: SB 1220, which would have let initiative petitions be circulated by residents who are not registered voters, failed to pass the Assembly Elections Committee on August 26, although it could be brought up again next year. That part of the bill was not controversial, but the bill has other, unrelated provisions, which stalled it. AB 1094, which permits election day registration, passed the Senate Elections Committee on July 14 and is in the Senate Appropriations Committee. SB 365, which would have made it more difficult for candidates to get on primary ballots, failed.

3. District of Columbia: Bill 13-142, which would eliminate the outdated law that says no party is on the ballot automatically for president unless it has elected a president of the U.S. since 1950, has a hearing in the City Council on September 28. The Green Party initiated this bill. Currently, the party is qualified in the District for all office except president.

4. Georgia: the Voters Choice Coalition, formed earlier this year to lobby for a better ballot access law, is planning to state the largest rally possible at the state capitol next January, on the first day of the legislative session. For more information, contact Hugh Esco at

5. Illinois: a group has been formed to lobby for easier ballot access. Telephone (888)-357-5405, or see write PO Box 4775, Rockford, Il. 61110. The group already has at least three co-sponsors for a proposed bill which would set the petition requirements for minor parties and independent candidates at one-half of 1% of the last vote cast.

6. North Carolina: HB 1072 was signed into law on August 5. It eliminates the requirement that petitioners for new parties and independent candidates must pay 5 to cover the cost of checking the signatures, and also eliminates the requirement that such petitions be notarized.

7. Oregon: on July 1 the legislature passed a proposed constitutional amendment, HJR 21, to increase the number of signatures for an initiative from 8% of the last gubernatorial election vote cast, to 12%. It won't go into effect unless the voters approve it next year.

8. Pennsylvania: a coalition of minor parties is working for HB 1634, which eases ballot access. Contact Steve Baker at (717)-845-8697; 631 So. Pine St., York, PA 17403.


The August 3 B.A.N. listed states in which only registered voters may circulate petitions for candidates, but omitted New Jersey. Also that issue said that Reform Party vice-chairman Gerald Moan is from Michigan; he lives in Arizona.


Alabama 39,536 5,000 46,000 0 0 0 0 July 3
Alaska (reg) 6,606 #2,410 already on already on *2,000 0 already on June 1
Arizona 13,565 es. #9,500 already on 0 *18,000 0 0 May 20
Arkansas undetermined #1,000 0 0 already on 0 0 May 1
California (reg) 86,177 149,692 already on already on already on already on already on Oct 4, '99
Colorado (reg) 1,000 #pay fee already on already on already on already on already on July 10
Connecticut no procedure #7,500 0 already on 0 0 already on Aug 11
Delaware es. (reg.) 235 es. 4,700 already on already on already on *228 *30 Aug 19
D.C. no procedure es. #3,500 can't start can't start can't start can't start can't start Aug 15
Florida be organized 82,203 already on already on already on already on already on *Sep 1
Georgia 39,094 #39,094 already on 0 0 0 0 Jul 11
Hawaii 602 #3,703 already on 0 0 0 already on Apr 26
Idaho 9,835 4,918 already on already on already on already on 0 Aug 31
Illinois no procedure #25,000 can't start can't start can't start can't start can't start Aug 6
Indiana no procedure #30,717 already on 0 0 0 0 Jul 15
Iowa no procedure #1,500 0 0 0 0 0 Aug 17
Kansas 14,854 5,000 already on already on 0 already on 0 June 1
Kentucky no procedure #5,000 already on already on 0 0 0 Aug 30
Louisiana est. (reg) 135,000 #pay fee 691 already on 14 40 89 July 1
Maine 21,051 #4,000 0 already on 0 0 already on Dec 6, '99
Maryland 10,000 es. 26,000 already on *5,500 finished 0 *1,500 Aug 7
Massachusetts est. (reg) 37,500 #10,000 already on 2,289 59 0 311 Feb 15
Michigan 30,272 30,272 already on already on already on *15,000 0 July 19
Minnesota 104,550 #2,000 0 already on 0 already on 0 June 1
Mississippi be organized #1,000 already on already on already on already on 0 Jan. 14
Missouri 10,000 10,000 already on already on finished already on 0 July 31
Montana 5,000 #5,000 already on already on already on *500 0 Mar 14
Nebraska 5,453 2,500 already on 200 *5,000 0 0 Aug 1
Nevada 4,099 4,099 already on 0 already on already on 0 July 2
New Hampshire 9,569 #3,000 *5,000 *1,000 0 0 0 Aug 7
New Jersey no procedure #800 0 0 0 0 0 July 30
New Mexico 2,494 14,964 already on already on 0 0 already on Apr 4
New York no procedure #15,000 can't start already on can't start can't start already on Aug 21
North Carolina 51,324 es. 90,000 already on 3,000 0 0 0 May 17
North Dakota 7,000 4,000 *can't start already on *can't start *can't start *can't start Apr 14
Ohio 33,543 #5,000 55,000 *7,500 *48,000 0 0 Nov 7,'99
Oklahoma 43,680 36,202 *7,000 0 0 0 0 June 1
Oregon 16,663 13,755 already on 400 *3,000 0 already on Aug 28
Pennsylvania no procedure es. #25,000 can't start can't start can't start can't start can't start Aug 1
Rhode Island 15,323 #1,000 can't start already on can't start can't start can't start Aug 1
South Carolina 10,000 10,000 already on already on already on already on 0 May 7
South Dakota 6,505 #2,602 *2,000 0 0 *400 0 Apr 4
Tennessee 24,406 25 0 6,000 0 0 0 Apr 7
Texas 37,381 56,117 already on can't start can't start can't start can't start May 28
Utah 2,000 #300 already on 0 *2,000 0 0 Feb 15
Vermont be organized #1,000 already on 0 0 0 0 Jan 1
Virginia no procedure #10,000 can't start can't start can't start can't start can't start Aug 24
Washington no procedure #200 can't start can't start can't start can't start can't start Jul 1
West Virginia no procedure #12,730 already on 0 finished 0 0 Aug 1
Wisconsin 10,000 #2,000 already on can't start can't start already on already on June 1
Wyoming 3,485 3,485 already on 0 0 0 0 June 1
TOTAL STATES ON 30 21 11 *11 11

"Deadline" refers to procedure with the earliest deadline. Other multi-state parties on the ballot: New Party in New York; in Florida, the Southern, Socialist Workers & Socialist parties. * -- means entry has changed since last issue. # means that candidate procedure allows a partisan label. Peace & Freedom in California has *75,000 registrants. The Mountain Party in West Virginia has *3,500.


Many observers feel that Pat Buchanan will seek the Reform Party presidential nomination. He has already researched the federal campaign finance law, and has discovered that primary season matching funds (which are for the purpose of helping a candidate win the nomination of a party) need not be segregated on the basis of which party's nomination is being sought. Therefore, donations made to him in his quest for the Republican nomination can be combined with donations made to him in his possible quest for the Reform nomination, and the total will be matched by the federal government.

Buchanan has apparently already determined that he would search for a running mate (on the Reform ticket) who has ties to organized labor. That person, who hasn't been found yet, might be someone who is now a Democrat.

Pat Choate, the Reform Party's vice-presidential candidate in 1996, actively supports Buchanan, and it is believed that Ross Perot (who has said nothing publicly) also supports him for the Reform nomination.

The Reform Party national convention will be sometime in August 2000, in either California, Illinois or Minnesota. On September 1, the executive committee will choose the exact dates, and the state. The committee will also decide whether to change the party's rules on presidential selection. If they are not changed, the nominee will be chosen by mail ballot. Any U.S. citizen may request such a ballot, during June and July. The party's convention would be held to ratify the choice. The party has asked the FEC for a ruling on whether the public funds ($2,600,000) which the party will receive for its nominating convention, may be used to fund the expenses of the mail ballot.

Jack Gargan, the Reform Party's new chairman, cannot take office until January 1, 2000, under party rules.


The American Reform Party will hold a national convention Oct. 1-3, 1999, in Washington, D.C. For more information, contact Nancy Couperus at (650)-941-4808 or Nelisse Muga at (619)-299-9866. Reform Party chairman-elect Jack Gargan will speak. He hopes members of the American Reform Party will re-join the Reform Party.


U.S. Senator Robert Smith of New Hampshire announced on August 10 that he would seek the U.S. Taxpayers Party nomination for president. However, on August 17, speaking at a breakfast meeting in New Hampshire, he announced that he would not seek the party's nomination after all. He did not explain why he had changed his mind, except to say, "I'm an independent, and I'm enjoying it, frankly. I feel free." Howard Phillips, the party's founder, stated in a press release, "The Senator's overriding concern was that a prospective candidacy by Pat Buchanan for the nomination of the Reform Party might well overshadow and undermine Senator Smith's media coverage, his fundraising, and his grassroots support."

The Taxpayers Party will nominate a presidential candidate on September 4, 1999, in St. Louis, Missouri.


On August 10, columnist Arianna Huffington wrote that actor Warren Beatty might run for president, perhaps as a Democrat, or in the Reform Party, or as an independent.

Beatty later met with Bill Hillsman, who produced Jesse Ventura's 1998 TV campaign ads. A Beatty op-ed piece ran in the Aug. 22 New York Times. It says, "None of the country's pressing problems can be solved without complete public financing of all federal campaigns."


The Greens/Green Party USA held a meeting in Washington, D.C. on July 23-25. The group resolved, "The Greens/Green Party USA will appoint a committee to negotiate with the Association of State Green Parties and potential presidential nominees the details of a unified, inclusive, and democratic presidential nominating process and convention. Such negotiations will include proposing joint sponsorship by the Association of State Green Parties and The Greens/Green Party USA of the national Green nominating convention." Also, the group revised its rules, so that each affiliated state party may elect delegates to the Green National Committee. This move may make it easier for the two competing national Green Party organizations to merge.

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