|This issue was originally printed on gray paper.|
On the evening of December 12, the U.S. Supreme Court released its decision in Bush v Gore, 00-949. The majority decision said that the Florida presidential vote recount, as it has been handled so far, violates the 14th amendment's Equal Protection clause, because different counties handle manual recounts of ambiguous ballots in different ways. The Court also said that since the count must be complete by December 12, it is too late for any governmental body to set uniform, specific standards in time for this year's election, and therefore there can be no official recount.
Seven justices agreed that the Equal Protection Clause requires specific standards for recounting votes. Justices Ruth Ginsburg and John Stevens did not feel that the recount procedures violate equal protection.
The majority said, "When the state legislature vests the right to vote for president in its people, the right to vote is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter.... The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the state may not, by later arbitrary and disparate treatment, value one person's vote over than of another.... We have observed that the idea that one group can be granted greater voting strength than another is hostile to the one man, one vote basis of our representative government."
The Court has received a great deal of criticism for its ruling that December 12 is the deadline. However, that has diverted attention away from the Court's ruling on the Equal Protection Clause, which will help to win lawsuits in the future against the following practices:
1. Vote tallies: some states refuse to tally write-in votes, even when those same states have a procedure by which write-in candidates who are serious and who want a tally, file a write-in declaration of candidacy. These states are Oregon, Virginia and Washington. Certain other states, such as New Hampshire and Pennsylvania, also refuse to tally any write-ins, although it would be a great deal of work for them to do so since they have no filing procedure for serious write-ins, and they would need to tally all of them.
It should be possible to argue that since every voter must be treated equally, it is unconstitutional for the state to count and report some valid votes, and refuse to count and tally other valid votes.
2. Ballot labels: Virginia law, effective January 1, 2001, says that the non-presidential candidates of old, established parties (those that polled 10% at either of the last two elections), may have a party label printed next to their names on ballots. Everyone else must be labeled "independent" even if they are really candidates of unqualified parties. It should be possible to use Bush v Gore to overturn this discriminatory practice. If Republican voters and Democratic voters may have the assistance of a label to help them know whom to vote for, voters of other parties with candidates in the race should have such help.
Louisiana law forbids any label at all for non-presidential candidates, unless they are members of a qualified party (which means Democrats and Republicans only; there are no qualified minor parties in the state). This policy is currently being challenged in federal court (Rosenthal v McKeithen), and Bush v Gore should help to win this case. Somewhat similar cases are pending in Ohio, and may be filed in Tennessee for the next election.
3. Ballot design: mechanical voting machines in some states give each major party its own separate row or column, but force some minor parties to share a column or a row with other minor parties. This produces a ballot in which many, if not most, voters, can't even find certain candidates.
Electronic ballots sometimes put candidates for the same office on different pages, so that a voter may have voted on the first page before seeing the entire list of candidates. The voters who support the candidates who are listed on the second page (always minor party and independent candidates) have a harder time voting. These design problems can now be attacked in court.
4. Ballot access: It should be easier to win constitutional ballot access cases, especially those involving a presidential election. In November 2000, it was impossible for Oklahoma and South Dakota voters to cast a vote for Ralph Nader, since he wasn't on the ballot and write-ins are banned. Nader voters were not treated equally with Bush and Gore voters in those two states.
5. Treatment of voters at the polls: although this isn't specifically a problem for minor party members, it is a serious general problem. Some counties in Florida (generally more affluent counties) had e-mail devices at the polls, so that if a voter appeared whose name was not on the precinct list, precinct officials could easily ask the county elections office to check the voter's status. In other, generally poorer counties, there was no remedy except to try to telephone the county for more information about the voter's status. The telephone lines were usually busy, so voters couldn't get their status resolved and were not permitted to vote. In the future, federal courts will have jurisdiction to solve the problem.
The chart below shows the vote for president, as certified by the various states. Candidates not shown on the chart, but who were on the ballot in at least one state, were: Monica Moorehead (Workers World), who received 1,804 in Florida, 199 in Rhode Island, 1,729 in Washington state, and 1,063 in Wisconsin, for a total of 4,795; L. Neil Smith (Arizona Libertarian nominee), who received 5,775 in Arizona; Cathy Brown (independent) who received 1,606 in Tennessee; Dennis Lane (Grassroots), who received 1,044 in Vermont; Randall Venson (independent) who received 535 in Tennessee; Earl Dodge (Prohibition) who received 208 in Colorado; and Louie Youngkeit (independent) who received 161 in Utah.
On October 13, an Alabama state court ruled that minor parties need not nominate candidates until July. The Democratic Party had filed the lawsuit, seeking to keep Reform Party candidates off the ballot for county office, on the grounds that the law really requires minor parties to nominate in April. Eagerton v Bennett, civ-2000-2223R, Montgomery.
Since the petition deadline for new parties is in July, if the Democratic Party had prevailed, this would have meant that new and minor parties would be forced to choose their candidates months before they were required to have qualified for the ballot.
1. California: on January 8, the U.S. Supreme Court will probably say whether they will hear Jones v Schaefer, 00-675, on whether candidates for Congress need to be registered voters. Both sides have asked the Court to hear the case.
California (2): on December 18, a State Appeals Court ruled that warehouse-style stores need not permit petitioners on their parking lots, even though shopping centers must permit such petitioning. Waremart v Progressive Campaigns, C34318.
2. Colorado: the U.S. Supreme Court will hold arguments in Colorado Republican Federal Campaign v FEC, 00-191, on February 28. The issue is whether the Constitution protects the right of political parties to donate as much money as they wish to their own nominees.
3. Connecticut: the State Supreme Court decision of October 2000, holding that Pat Buchanan was the actual presidential nominee of the Reform Party, is now reported. It is the first of the many lawsuits between the Buchanan and Hagelin factions of the party to be reported, and it sets forth the reasons why the Court felt that the Buchanan nomination was valid. It is possible that the other lawsuits never will be reported, so this one will be significant. The cite is 760 A 2d 1257. The decision also explains why Donna Donovan (a Hagelin supporter) is the legal state chair of the Reform Party.
4. D.C.: on October 16, the U.S. Supreme Court affirmed the lower court ruling in Alexander v Daley, 99-2062, over whether the Constitution provides any protection for D.C. voters to congressional representation. The lower court had turned down relief by a vote of 2-1; the dissenter had argued that D.C. voters should be allowed to vote in Maryland elections, which actually occurred before 1800.
5. Florida: on December 20, independent U.S. Senate candidate Willie Logan dismissed his federal lawsuit which had alleged that it is unconstitutional to automatically list the major parties first on the ballot. Logan v Harris, 4:00-cv-358, Tallahassee.
Florida (2): the Brennan Center for Justice of New York city is vigorously fighting the state's ban on letting ex-felons register to vote. The Center argues that the ban, created in 1868, was passed with the purpose of disenfranchising African-Americans, and therefore violates the 15th amendment. The Florida ban affects more than 500,000 potential voters, and 24% of all African-American men in the state. Johnson v Bush, 00-3542-civ. The case is before Judge James King, a Nixon appointee.
6. Georgia: the Green Party filed a lawsuit in state court in September, arguing that the state's 5% petition requirement for district and county office violates the State Constitution. On October 27 the court denied the state's motion to dismiss the suit, and a trial will be held. Dickson v Secretary of State, 00-cv-27164, Fulton Co. Superior Court. The law has been upheld many times in federal court, but no one had previously tried state court.
7. Illinois: on December 4, the state asked the U.S. Supreme Court to reverse the 7th circuit decision which said that any adult may circulate a petition to place a candidate on a primary ballot. McGuffage v Krislov, 00-923. The state says only registered voters who are residents of the district, and members of that party, should be allowed to circulate.
Illinois (2): Ralph Nader has dismissed his lawsuit over the state's June petition deadline, even though he won an injunction against it last year. The action is unfortunate, since now there is no court case pending which might cause that deadline to be declared unconstitutional. Nader 2000 v Illinois State Board of Elections, 00-cv-4401, federal court, Chicago.
8. Maryland: there will be a hearing on January 18 in Green Party of Maryland v Board of Elections, C-00-657880, in Anne Arundel Co. Circuit Court. The party argues that since it is a qualified party, it is unconstitutional for the state to require it to submit additional petitions to place its nominees on the ballot.
9. North Carolina: Ralph Nader has dropped his federal lawsuit against the May petition deadline for new parties to appear on the ballot. Before the election, he had failed to win an injunction against that deadline, but the issue of the constitutionality had not been decided. Nader 2000 v Bartlett, 5:00-cv-348, Raleigh.
10. Ohio: on January 31, there will be a hearing in the 6th circuit in Schrader v Blackwell, 00-3044, over whether the state must let petitioning candidates choose a partisan label to be printed on the ballot.
11. Oregon: on November 22, a state court held a trial in Freedom Socialist Party v Bradbury (Multnomah Circuit Court 3-02456), over a law which prohibits the Freedom Socialist Party from appearing on the ballot, since the Socialist Party is already on the ballot in parts of the state. The hearing went well for the party. The U.S., like most other countries, has traditionally had multiple political parties with the word "socialist" in their name. In the states in which two such parties are active, Oregon is the only state which forbids both of them from having the word "socialist" in their name. The Socialist Party supports the Freedom Socialist lawsuit.
12. Puerto Rico: on October 2, the U.S. Supreme Court refused to hear Civil Action Party v Puerto Rico, 00-124. The lower court (the Puerto Rico Supreme Court) had upheld a law that only attorneys may circulate petitions to get a new party on the ballot. 98,000 signatures are needed, and only one party has ever compiled with this requirement, which has existed since 1978.
13. Tennessee: on September 18 the 6th circuit ruled that the state may require registered voters to reveal their Social Security number, since the federal Privacy Act lets states continue to ask for the number if they had been doing it before 1975. McKay v Thompson, 226 F 3d 752.
14. Texas: on December 1, a U.S. District Court ruled that Dick Cheney is a resident of Wyoming. Jones v Bush, 3:00-cv-2543, Dallas. The U.S. Constitution says that presidential electors cannot vote for a presidential candidate and a vice-presidential candidate, both of whom are "inhabitants" of the same state as the electors. Plaintiff had argued that Cheney is an inhabitant of Texas and therefore the Texas electors could not vote for both Bush and Cheney. The judge ruled that "inhabitant" does not mean "domicile" (everyone has only one domicile but may have more than one residence). On December 7, the 5th circuit upheld the District Court, 00-11346.
15. Wyoming: on October 13, the State Supreme Court ruled that nothing in the election code prohibits a member of one party, from winning the primary of another party by write-in votes. A registered Republican had lost the Republican primary for State Senate, but she had won the Democratic primary on write-in votes. The Court said she was entitled to be the Democratic nominee. Murphy v State Canvassing Board, 12 P 3d 677.
16. national: on December 12, a U.S. District Court in New York ruled in a presidential debates case that the FEC is permitted to let corporations donate money to the Commission on Presidential Debates. Committee for an Unified Independent Party v FEC, 00-cv-3476, Manhatten. This is the same conclusion that federal courts in D.C. and Boston had reached earlier.
1. Nebraska: the Secretary of State's office supports amending the law to permit write-in votes for president, and is seeking a sponsor for the bill.
2. North Carolina: on December 5, the Election Law Revision Committee voted to ask the legislature to move minor party and independent petition deadlines to July; to lower the number of signatures for independent candidates; to eliminate wording on the new party petition that requires signers to say they are organizing the party; and to let voters remain registered in a party even after it goes off the ballot. On January 4 the Committee will meet again and decide whether to ask that the number of signatures for new parties be reduced. On December 15, the Raleigh News and Observer editorialized in favor of reducing the party petition requirement from 2% to 1%.
3. Oklahoma: Representative Ray Vaughn will introduce a bill to lower the number of signatures needed for new parties and independent presidential candidates, to 1% of the last vote cast (the current requirement for new parties is 5%). A group of state political scientists has endorsed the idea.
4. West Virginia: the Secretary of State has asked the legislature to repeal laws which forbid anyone from circulating a petition who has not obtained "credentials" to do so. If the requirement is not repealed, the pending Nader lawsuit will probably strike it down.
State legislature in Alaska and Washington must grapple with election law revisions this year, since the blanket primary laws of both states have been declared void. In Alaska, the Division of Elections has told all six qualified political parties that if the legislature fails to act in 2001, the Division will not hold any primaries in 2002 whatsoever. In that case, the parties will be required to nominate candidates by their own resources.
In Washington state, it is likely that the legislature will change the primary system to an open system, in which voters (in the privacy of the voting booth) decide which party's primary to vote in.
In California, the Democratic Party has already exercised its option under the new law passed last year, to let independent voters vote in its primary. However, the party doesn't want independent voters to vote for County Central Committee, and is backing SB 7 to implement this choice. The Republican Party will decide what to do in February. The state's other qualified parties will also be deciding whether to let independents vote in its primaries.
Advocates of alternate voting systems are expecting progress in 2001. In Vermont, the Center for Voting and Democracy has a full-time lobbyist who hopes to persuade the legislature to authorize Instant Runoff Voting. Since the Democrats are more supportive and the Republicans now control the Vermont House, the lobbyist hopes to win Republican support by a compromise which would permit Instant Runoff Voting as well as the Indirect Initiative (Vermont does not currently have an initiative procedure).
The total votes cast (including the seven other candidates on the ballot, but not including write-in votes not yet tallied) was 105,377,639 votes. The percentage of non-Democrat, non-Republican votes for President was 3.73%.
The New York Gore vote includes 3,942,215 Democratic votes, 88,395 Working Families votes, and 77,087 Liberal votes. The New York Bush vote includes 2,258,577 Republican votes and 144,797 Conservative votes. The New York Buchanan vote includes 25,175 Right to Life votes and 6,424 Buchanan Reform votes. See above for vote totals for the seven other candidates who were on the ballot in at least one state. * means write-in total. ? means write-ins not tallied yet.
Web Note: this table includes corrections made after the
printed newsletter was completed and mailed.
For additional corrections, see this errata.
Above is the vote for House of Representatives. 4.20% of the vote was for non-Republican, non-Democrat candidates. 2000 was the first election since 1984 at which this "other" House vote was higher than the presidential "other" vote.
The "other parties" column is: Connecticut, Independence; Minnesota, Independence; New Jersey has 5,968 Conservative, 788 Socialist and 704 Socialist Workers; New York has 208,719 Conservative, 98,491 Independence, 74,721 Right to Life, 61,254 Working Families, 45,863 Liberal, and 1,025 Socialist Workers; Oklahoma, Southern Party; Oregon, Socialist; South Carolina, United Citizens; Vermont has 14,918 Liberty Union and 4,799 Grassroots; D.C., Socialist Workers.
On December 18, one elector from D.C. refused to vote for Al Gore. Instead, she abstained, to protest the fact that D.C. has no voting member in Congress. It was the first time since 1832 that any elector had failed to vote for anyone. That year, two Maryland electors who had been elected to vote for Henry Clay, didn't vote.
The Green Party is not recognized by the Federal Election Committee as a "national committee", because there have been two rival national Green Party organizations, and it hasn't been clear to either the FEC, or anyone else, how to handle the rivalry. The Association of State Green Parties held a national meeting in Atlanta, Georgia, December 8-10, and believes that it now has a formula for agreement with The Greens/Green Party USA. Some individuals hold office in both groups, and these individuals, who attended the ASGP meeting, generally support a plan under which the ASGP would become the FEC-recognized national committee [correction]. The Greens/Green Party USA would become a national activist "club" within the national Green Party, and would give up its use of the word "party".
Formal recognition of this idea must wait for official action by The Greens/Green Party USA, sometime this coming spring.
National leaders of the Reform Party has been concentrating on settling intra-party lawsuits. The federal case in Lynchburg, Virginia, was settled on December 28, and the state court case in Long Beach, California, has also been settled by all, except for one individual. The party's next national convention will be in the summer of 2001. Gerald Moan, the party's national chair, is also working to woo the New York Indepencence Party back into affiliation. Pat Choate, former national chair, is actively interested in the party.
Last month, Maharishi Mahesh Yogi, leader of the Transcendal Meditation Movement and a resident of the Netherlands, asked that the world's Natural Law Parties disband. However, the Natural Law Party of the U.S. will continue to exist. The U.S. party has gradually separated itself from the TM movement and many of its candidates are not TM practitioners. The U.S. party is mulling over the possibility of changing its name, and sees itself as the natural heir to voters who want a "centrist" party.
Until the November 2000, no write-in candidate for president at a general election had ever polled as much as 1% of the vote in any state. Independent presidential candidate Eugene McCarthy's California showing in November 1976 had been the best; that was .74%.
Ralph Nader broke that record in three states: in Idaho, his write-ins were 2.45% of the total vote cast for president; in Wyoming, 2.12%; in Indiana, .84%. The only other state which counted Nader write-ins, Georgia, showed .51%.
The other three states in which Nader wasn't on the ballot were South Dakota and Oklahoma (both of which ban write-ins); and North Carolina, which permits write-ins but refused to count any for Nader because he failed to file a declaration of write-in candidacy by the July deadline (at the time, he didn't realize he wouldn't be on the ballot).