Ballot Access News -- October 1, 1999

Volume 15, Number 7

This issue was originally printed on gray paper.

Table of Contents
  16. Subscription Information



On September 17, U.S. District Court Judge Richard Roberts ruled that the U.S. Constitution requires that valid votes be counted. Turner v D.C. Bd. of Elections, 98-2634. The issue was whether Congress could forbid the District of Columbia from counting the votes for last year's medical marijuana initiative.

On September 20, the Board counted the votes, and they show that the initiative received 69%.

Judge Roberts wrote, "When a citizen steps into the voting booth to cast a vote, he or she intends to send a message in support of or in opposition to the candidate or measure at issue... The message of the vote is received when the election results are released thereby completing an important communication by the public to the government... Based on the vote's strong communicative content and the history of the vote's central importance to a democratic system of government, this Court concludes that the result of votes properly cast in a properly conducted election are core political speech...To cast a lawful vote only to be told that that vote will not be counted or released is to rob the vote of any communicative meaning whatsoever."

Implications for Minor Parties

There are 12 states which permit write-ins, but which usually fail to canvass such votes, even for bona-fide candidates who are not on the ballot. They are Alabama, Alaska, Iowa, Maine, Minnesota, New Hampshire, New Jersey, Oregon, Pennsylvania, Rhode Island, Tennessee, & Vermont.

In Oregon, the State Supreme Court said in 1945, "A voter has the (state) constitutional right to vote for whomever he pleases and he may 'write-in' the name of the person whom he desires to have elected." Howell v Bain, 156 P 2d 576.

Write-in votes in Oregon are valid. Nevertheless, a 1995 Oregon law, 254.500, says that write-in votes shall not be tallied, unless the vote-counting computer indicates that the number of write-ins exceeds the number of votes cast for the candidate who was on the ballot and who received the most votes.

Under the logic of the Turner decision, the Oregon law suppressing the canvassing of write-in votes is unconstitutional.

The other states named above have no legal justification for refusing to canvass write-ins; they simply say it is too much work. For example, after the November 1996 election, the New Hampshire Secretary of State wrote a letter, saying he would not furnish the number of votes written for Ralph Nader for president, but that anyone who wanted to know how many write-ins Nader received was free to visit his office, examine the statements sent in by each town, and make his or her own tally. The problem with such a "private" tally is that the Federal Election Commission, the Clerk of the U.S. House, the wire services, and Congressional Quarterly (all of which tally up the national vote for president) won't recognize any figures unless they are certified by state elections officials. Therefore, for the history books, Nader is recorded as having received "zero" votes in New Hampshire.

In the District of Columbia, the decision should force the Board of Elections to canvass write-ins for declared write-in presidential candidates, something the Board has always refused to do, even though in 1974 the D.C. Court of Appeals ruled in Kamins v Board of Elections, 324 A 2d 187, that write-ins for presidential candidates who have filed a declaration of candidacy and a slate of elector candidates must be permitted.

In the problem states named above, the decision isn't binding, but it will be influential, since it is scholarly and the principles it proclaims have a persuasive ring to them.


On September 14, West Virginia Secretary of State Ken Hechler ruled that voters may sign petitions for new party and independent candidates, and also vote in primary elections. This leaves Texas as the only state in which primary voters can't sign petitions to qualify new parties.

Earlier this year, the West Virginia legislature removed the criminal penalties on voters who do both, but left in place the law which says that petitioners must tell voters that they can't do both. This left an ambiguous law, which has now been resolved favorably.


The Federal Election Commission still hasn't put the matter of presidential debates on its agenda. This is odd, since the comment period for the proposal (that the FEC should write objective criteria on whom can be invited into the debates) closed in July.

The FEC received 90 letters, and 1,200 e-mails, during the comment period. All were in favor of FEC consideration of the idea (including Democratic U.S. Senator Max Cleland of Georgia), except for the Republican National Committee and the Commission on Presidential Debates.

One of the 3 Republican seats on the FEC is vacant. Senate Republicans asked President Clinton to appoint Bradley J. Smith back in January, but Clinton has not acted. Smith is known to be favorable to minor parties. It would be helpful for anyone to write his U.S. Senator, especially any Democratic Senator, and ask for support for Smith.


On March 15, 1999, Utah Governor Mike Leavitt signed HB 129, which increases the number of signatures for statewide independent candidates from 300 signatures, to 1,000 signatures. 1,000 signatures is .09% of the number of registered voters in the state. The requirement for district and county independents rises from 100 to 300 signatures.

The bill was suggested by the Utah elections division, which felt that the 1996 ballot was too crowded. There were twelve presidential candidates on the November 1996 ballot. In 1998 the legislature increased the requirement for new parties from 500 to 2,000 signatures.

The new law is unconstitutional, as applied to independent candidates for partisan office in Daggett County, Utah's smallest county. The county only has 712 registered voters. An independent running for county office needs signatures from 42.1% of all the registered voters in the county. The U.S. Supreme Court suggested in 1974 that petitions for candidates cannot exceed 5% of the number of eligible signers. Since then, lower courts have always ruled against petition requirements for independent candidates which exceed 5%.

The bill also imposes a $500 filing fee on independent presidential candidates. This fee is probably also unconstitutional, since Utah does not impose a filing fee (for the general election) on the presidential candidates of qualified political parties. Generally, states do not impose mandatory filing fees on independent presidential candidates, to avoid this equal protection problem.

SB 129 also makes it legal for someone to run for president, and for another office, simultaneously. This change was made to accommodate U.S. Senator Orrin Hatch, who is running for president and for re-election to the U.S. Senate next year.

The bill also makes it legal for unregistered voters to circulate initiative petitions (unregistered voters have always been allowed to circulate Utah petitions for new parties or for candidates).


On September 21, U.S. District Court Judge Sam Sparks, a Bush appointee, upheld Texas law which makes it impossible for a new party to appear on the ballot in a single legislative or congressional district, unless it qualifies statewide. Holmes v Gonzales, 98-600, w.d. The case had been filed by the Constitution Party (formerly the U.S. Taxpayers Party), which didn't qualify statewide in 1998, but which tried to run a legislative candidate and a U.S. House candidate. The party has until October 20 to decide whether to appeal.

The decision is disappointing, since at the oral argument, the judge had said the state's arguments are "silly". The decision doesn't acknowledge that 28 states permit a party (which isn't qualified statewide) to be on the ballot in part of the state.

The decision says, "To prevent the ballot from resembling the highly fragmented ballots of various European countries, the state should require any candidate to make a showing of support sufficient to justify the expense of placing the candidate's name on the ballot." This statement is not supported by anything in the record of this case, nor by any precedent; it doesn't even specify any particular country (did he mean Great Britain?).

Plaintiffs had pointed out that independent candidates can run for the U.S. House, or for the legislative, with only 500 signatures (or 5% of the last vote cast, whichever is less), whereas they had to obtain 43,963 signatures. Judge Sparks justified this disparity in treatment, saying, "In some of the state's rural areas with extremely small numbers of residents, it may be as difficult pragmatically for an independent candidate with no recognized political affiliation to obtain 500 signatures as it is for a party candidate to obtain 44,000 signatures statewide."

The statement is wrong, since the law says that district candidates need 500 signatures or 5% of the last vote cast, whichever is less. Thus, in a very small place, independents need fewer than 500 signatures.

Ironically, the decision cites Bullock v Carter, yet fails to acknowledge an important point in that case. Bullock v Carter is a unanimous 1972 U.S. Supreme Court decision, striking down mandatory filing fees in Texas. In that decision, the court rebutted Texas' claim that a candidate who could not pay the filing fee was always free to run as an independent (fees were only charged for candidates running in primaries). The U.S. Supreme Court said, "We can hardly accept as reasonable an alternative that requires candidates and voters to abandon their party affiliation in order to avoid the burdens of the fees". The Texas policy of letting independents on the ballot with 500 signatures, while requiring eighty times as many signatures for a party label, does exactly what the U.S. Supreme Court condemned in 1972.

Please contact the new national chairman of the Constitution Party, Jim Clymer, at (717)-299-7101, and express the wish that the party appeal the Holmes decision. Clymer is an attorney.


On September 10, the U.S. Supreme Court agreed to hear Gutierrez v Ada, 99-51, over the definition of "votes cast". Guam requires candidates for Governor to receive a majority of "votes cast". In 1998, there were two candidates on the ballot, and Carl Gutierrez, the Democratic nominee, appeared to have won. However, if the ballots which were blank for Governor are "votes", Gutierrez didn't receive a majority.

It is odd that there is no common understanding of phrases such as "vote cast" and "election day". Lawsuits against "early voting" have shown that some judges think "election day" is the day the votes are counted, not the day they are cast. The New Jersey lawsuit reported in the last B.A.N. (over whether the major parties lost their ballot position) also shows that there is no consensus on the meaning of "polls" (as in "a political party which polls 10% of the vote cast"). It will be good to have at least one of these terms ("votes cast") defined by the Supreme Court.


On September 23, Judge Emanuel Bertin, of the Montgomery County Court of Common Pleas, upheld Pennsylvania ballot access, which requires candidates of small qualified parties to obtain approximately 15 times as many signatures as are needed by candidates seeking the nomination of a major party. Cavanaugh v County of Montgomery, 99-13785. The plaintiff is a Libertarian Party nominee for county Commissioner in this year's election. He plans to appeal.

Judge Bertin cited three federal court decisions as the basis for his ruling. However, none of them has any bearing on this case, which is based on the state Constitution's guarantee that elections must be "free and equal"; the Cavanaugh case is not based on the U.S. Constitution.

The judge also cited one State Court case, Petition of Berg, but that has nothing to do with the issue in this case either. The Berg decision upheld a requirement that the candidate seeking the nomination of a major party must submit 2,000 signatures, with 100 from each of ten counties. That is an entirely irrelevant issue to the Cavanaugh case.


1. Alaska: on September 2, the 9th Circuit denied any relief to the Republican, Alaska Independence, and Libertarian Parties, in their case against the blanket primary. Ross v State of Alaska, 98-35720. The judges said the Republican Party already lost in the State Supreme Court and thus cannot re-litigate the issue. It said the other parties didn't show that the primary had injured them.

2. Arizona: on September 9, a group of voters sued in federal court against the public financing law passed in 1998. LAVIS v Bayless, 99-1627. Some of the money used for public financing is from a surcharge on fines (including parking tickets), and some comes from fees on lobbyists. Plaintiffs argue that the First Amendment forbids the state from forcing anyone to contribute to political campaigns against their will.

Arizona (2): the Democratic and Republican Parties, and one faction of the Libertarian Party, are about to file a brief, arguing that state law telling parties how to organize themselves is not mandatory; and that if it is mandatory, it is unconstitutional. Az. Libertarian Party v Az. Libertarian Party, Inc., cv99-03904.

3. California: on September 8, U.S. District Court Judge Claudia Wilken struck down a city ordinance which does not permit anyone to contribute more than $500 to a group which makes independent expenditures in city elections. San Franciscans for Sensible Gov't. v Renne, C99-2456.

4. Florida: on September 2, the State Supreme Court upheld legislative term limits. Ray v Mortham.

5. Illinois: on September 23, a State Appellate Court refused to hear a Libertarian Party challenge to its exclusion from the 1998 ballot. The Court said the lawsuit had a procedural flaw. Tobin v Libri, 98co-152. A parallel case is pending in federal ct.

6. Michigan: on September 13, U.S. District Court Judge George E. Woods, a Reagan appointee, refused to enter an injunction against state law which makes it impossible for a party to get on the ballot in just part of the state, unless it is qualified statewide. Green Party of Michigan v Miller, 99-cv-73669. However, he will hold a trial, and both sides will have a chance to present more evidence. The Green Party has never been able to qualify in Michigan, and wants to run candidates for partisan city elections in Ann Arbor.

7. Nevada: on April 27, a U.S. District Court ruled that a casino must permit leafletting on one of its private sidewalks, since it acts as a public sidewalk (it connects two adjoining public sidewalks). Venetian Casino Resort v Local Joint Board, 45 F Supp 2d 1027.

8. New Jersey: on September 8, the State Supreme Court refused to hear New Jersey Conservative Party v Farmer, the case over whether the Republican and Democratic Parties had lost their right to a party column on the November 1999 election.

9. New York: on September 6, U.S. District Court Judge Frederic Block, a Clinton appointee, upheld state law which requires a petitioner to be a resident of the district in which he or she is petitioning. Lerman v Board of Elections, 99-4901, e.d. The plaintiff is appealing.

10. West Virginia: on September 13, the Mountain Party filed a lawsuit in state court, alleging that the state cannot force petitioners to tell everyone that if they sign the petition, they may not vote in the primary. Giardina v Hechler, 99-c-2058. A hearing is set for Nov. 4. However, given the state's Sep. 14 ruling that the ban on signing and then voting in the primary no longer exists, the state almost certainly won't oppose the lawsuit.


On September 23, the U.S. House Judiciary Committee heard testimony for and against HR 1173, which would repeal the federal law, mandating that states use single-member districts to elect U.S. House members.

If the existing federal requirement were repealed, states could try various forms of proportional representation, in elections for the U.S. House.

Testifying in favor were Congressman Tom Campbell (R-CA), a representative of the U.S. Justice Department, a representative of the Brennan Center for Justice, and Professor Theodore Arrington, a political scientist from North Carolina.

Testifying against were a representative of the Center for Equal Opportunity, a representative of the Manhatten Institute, law professor Everett Robinson, and political science professors Mark E. Rush (Washington & Lee University) and Andrew Busch (Univ. of Denver).

To read the written testimony of each witness, visit the website

None of the Democratic members of the Judiciary Committee attended, but four Republican members were. It seems obvious that the Committee won't pass the bill this year, but Watt has already said he will re-introduce it in future congresses.


Alabama 39,536 5,000 46,000 0 0 *300 0 July 3
Alaska (reg) 6,606 #2,410 already on already on *finished 0 already on June 1
Arizona 13,565 es. #9,500 already on 0 *finished 0 0 May 20
Arkansas undetermined #1,000 0 0 already on *200 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 *already on *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 *50 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 *5,000 already on 0 June 1
Kentucky no procedure #5,000 already on already on can't start can't start can't start 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 *8,500 finished 0 *2,000 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 *23,000 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 *2,000 0 Mar 14
Nebraska 5,453 2,500 already on 200 *finished 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 *5,800 *2,200 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 *60,000 7,500 *51,000 0 0 Nov 7,'99
Oklahoma 43,680 36,202 *9,000 0 *50 0 0 June 1
Oregon 16,663 13,755 already on 400 *5,000 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 *2,500 0 0 *1,500 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 *#1,000 already on 0 *already on 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 *already on 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 *13 *12 11

"Deadline" refers to procedure with the earliest deadline. * -- means entry has changed since last issue. # means that candidate procedure allows a partisan label. Peace & Freedom in California failed to qualify by the deadline. The Alaska Libertarian Party now has enough registered members so that it is qualified for all office, not just president. The West Virginia Mountain Party has *4,800.


1996 primary date 2000 primary date Parties Entitled to a Presidential Primary (other than Dem & Rep)
Alabama June 4 June 6
Alaska none none (no primary)
Arizona Feb. 27 Feb. 22 Libertarian and whichever other parties qualify
Arkansas May 21 May 23
California March 26 March 7 Amer Indp (Constitution), Green, Libt, Natural Law, Reform
Colorado March 5 March 10
Connecticut March 5 March 7
Delaware Feb. 24 unknown Libt, Nat Law, probably Reform, Constitution, perhaps others
Florida March 12 March 14
Georgia March 5 March 7
Hawaii none none (no primary)
Idaho May 28 May 23 Libertarian, Nat Law, Reform, Constitution, perhaps others
Illinois March 19 March 21
Indiana May 7 May 2
Iowa none none (no primary)
Kansas April 2 April 4
Kentucky May 28 May 23
Louisiana March 12 March 14 Reform if it increases its registration to 40,000
Maine March 5 March 7 Green, Reform, and whichever other parties qualify
Maryland March 5 March 7
Massachusetts March 5 March 7 Libertarian and whichever other parties qualify by registration
Michigan March 19 Feb. 22 Reform
Minnesota none none
Mississippi March 12 March 14
Missouri none March 7 Libertarian (But see errata.)
Montana June 4 June 6 Libertarian, Nat Law, Reform, possibly others
Nebraska May 14 May 9 Libertarian and whichever other parties qualify
Nevada March 26 none (no primary)
New Hampshire Feb. 20 unknown
New Jersey June 4 June 6
New Mexico June 4 June 6 Green, probably Libertarian
New York March 7 March 7 Reform, Consrv, Green, Liberal, Right-to-Life, Working Fam.
North Carolina May 7 May 2 Libertarian
North Dakota Feb. 27 none (no primary)
Ohio March 19 March 7 probably Libt, Natural Law, and other parties which qualify
Oklahoma March 12 March 14 probably Libt, Natural Law, and other parties which qualify
Oregon March 12 May 16
Pennsylvania April 23 April 25
Rhode Island March 5 March 7 Reform, Cool Moose
South Carolina various various (no government-provided primary; any party can run its own)
South Dakota Feb. 27 June 6 whichever party qualifies by petition
Tennessee March 12 March 14 whichever party qualifies by petition
Texas March 12 March 14
Utah no govt primary March 10 Independent American, Libertarian
Vermont March 5 March 7 Grassroots
Virginia none Feb. 29
Washington March 26 Feb. 29
West Virginia May 14 May 9 Libertarian
Wisconsin March 19 April 4
Wyoming none none (no primary)
D.C. May 7 May 2 Green, Umoja, if bill 13-142 passes the city council

In a few instances, a political party which is entitled to a government-provided presidential primary has chosen not to have one (for example, Arizona Democrats, Delaware Republicans, Utah Libertarians).


The major U.S. mass media, during the summer of 1999, has given almost unprecedented publicity to minor political parties. First, the Constitution Party (then called the U.S. Taxpayers Party) received the greatest amount of attention it has ever received in its 9-year history, when it appeared that U.S. Senator Bob Smith would become its presidential candidate. More recently, the likelihood that Pat Buchanan, and perhaps also Donald Trump, will seek the Reform Party nomination, has given the Reform Party's presidential contest equal coverage with recent coverage of the race for the major party nominations.

Many reporters and commentators are badly informed about ballot access. William Safire of the New York Times, and John Guzzi of Human Events, both wrote recently that the Reform Party is on the ballot in all 50 states. They seem to think that there is a connection between the Reform Party's status under federal law (as a party entitled to general election campaign funding), and its ballot access position. Of course, ballot access is a matter of state law, and each state has its own rules, with no connection to federal law. The United States is the only nation in the world in which the rules for ballot access in national elections are not written by the national government.

Erring on the other side, USA Today said in a news story in August that the Reform Party is only on the ballot in 10 states. Even though the reporter who wrote that is now aware that the correct number is 21, the misinformation spread to MSNBC, where a commentator only two weeks ago said that the Reform Party is only on in 10 states.

The media also prints outlandish statements about the cost of gaining ballot access. It printed, without checking, a statement by Roger Stone, an experienced Republican political consultant, that it will cost $20,000,000 to get the Reform Party presidential candidate on the ballot in the 29 states in which the party is not now qualified.

The Reform Party presidential candidate will need another 360,000 valid signatures to be on the ballot in all 50 states. Assuming that 550,000 signatures must be gathered, to be certain that 360,000 are valid, Stone seems to think that it costs $36 to gather one signature.

The media also overlooks the story of which parties are now gaining ballot access. The Libertarian Party has collected approximately 95,000 valid signatures, since the 1998 election, toward ballot access in 2000. The Natural Law Party has collected approximately 85,000 valid signatures for the same purpose. By contrast, the Reform Party has only collected about 13,000 valid signatures in the same period. The unreported story is that the Reform Party could have been doing substantial work this year to improve its ballot access, but it has not been doing so.


On September 1, the executive committee of the Reform Party chose Long Beach, California, for its 2000 presidential nominating convention, to be held August 10-13 (this is after the Republican convention, but before the Democratic convention). The vote was 8-3; the only competing proposal would have set the convention in Minnesota.


On September 3, the U.S. Taxpayers Party national convention voted to change the party's name to the Constitution Party. On September 4, the party chose Howard Phillips for president and columnist Joseph Sobran for vice-president. The vote for president was Phillips 500, Herb Titus 88. Titus, a law professor, had been the party's vice-presidential candidate in most states in 1996.

Article II, 1, of the U.S. Constitution, says that a presidential elector may not vote for two people (one for president and one for vice-president) who are both inhabitants of that elector's own state. Both Phillips and Sobran live in Virginia. The party was aware of the constitutional provision, and therefore nominated an alternative vice-presidential candidate, for purposes of the election within Virginia only. Therefore, in Virginia, the party's slate will be Phillips for president and Curt Frazier (who lives in Missouri) for vice-president.


The Workers World Party will nominate a presidential candidate at its national convention in New York city, Nov. 6-8.

Ballot Access News. is published by and copyright by Richard Winger Note: subscriptions are available!
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Compilation copyright (c) 1999 Bob Bickford