Ballot Access News -- July 1, 2001

Volume 17, Number 4

This issue was originally printed on yellow paper.

Table of Contents
  15. COFOE
  28. 2001 AND 2002 PETITIONING
  29. Subscription Information



On June 3, newspapers across the United States reported that, according to some of U.S. Senator John McCain's staffers, he was thinking about being an independent candidate for president in 2004. On June 5, the North Carolina ballot access reform bill, SB 10, came up for a vote in the House. Every Republican, except one, voted against the bill, so it died, by a vote of 45-71. The one Republican who voted for it was Representative Art Pope, who had sponsored similar bills in the past.

It is clear that the McCain story was responsible for the Republican behavior. In the Senate, the bill had passed unanimously. Furthermore, Republicans had amended the bill in the Senate, to provide that new and minor parties cannot nominate anyone who isn't a member of that party. Republicans wanted this passed, since in 2000, an incumbent who had been defeated in the Republican primary had then been nominated for the general election by the Reform Party. This act irked Republican legislators, and they desired to make it impossible for this to happen again. Therefore, they had a stake in passing SB 10.

In debate on the House floor, Republicans expressed hostility toward voters who support minor party and independent candidates. Republican House leader Leo Daughtry said, "It is working well by having a Republican Party and a Democratic Party. I don't think having the most restrictive rule is a bad thing." Other Republicans shed crocodile tears for the Democrats, stating that voters who voted for Nader were responsible for Al Gore losing last year's election. However, Democrats voted for the bill by a margin of 44-12.

SB 10 beneficial changes would have been:

1. The deadline for new party petitions would have moved from May to mid-July.

2. The number of signatures for independents for statewide office would have gone from 2% of registered voters, to 2% of the last vote.

3. If a party lost "qualified" status, voters could still have remained as registered members of that party.

4. The petition to qualify a party would no longer have said that signers "intend to organize" the new party whose petition they are signing.

The North Carolina behavior resembles the behavior of Michigan legislators in 1980. At the time, Michigan had no procedures for independent candidates to get on the ballot. That situation had been held unconstitutional in 1976. In response, the Michigan Secretary of State had asked the legislature to pass SB 161, to create independent procedures. The bill had passed the House committee on March 24. On April 16, newspapers reported that Congressman John Anderson would decide in a week, whether to be an independent candidate for president. On April 17, the House killed SB 161. This didn't prevent Anderson from getting on the Michigan ballot, however; he merely formed a new party within Michigan. The Michigan legislature finally legalized independent candidates in 1988, after losing seven more lawsuits.

North Carolina is now vulnerable to a lawsuit from any independent candidate for statewide office in the 2002 election (U.S. Senator is the only such race). Such a candidate can point out that he or she is required to collect twice as many signatures as a new party would need. The 4th circuit ruled in 1991 that ballot access for independents is entitled to greater protection than ballot access for new parties. Therefore, it would be virtually impossible for North Carolina to justify requiring twice as many signatures for statewide independents, as it requires for new parties.

The awkward wording on the party petition is also subject to court challenge. There are 10 published precedents which say that somewhat similar language is unconstitutional. The only reason such language hasn't been struck down in North Carolina, is that previous lawsuits didn't present any evidence from voters, saying they didn't wish to sign the petition because of its wording. The next lawsuit won't make the mistake of failing to provide such evidence.


On June 22, Republican Congressman Ron Paul of Texas again introduced a federal ballot access bill, HR 2268, the Voter Freedom Act. It sets a ceiling of 1,000 signatures, for minor party and independent candidates for the U.S. House. Authority for it is based in Article I of the U.S. Constitution, which gives Congress the right to write election laws for congressional elections. If the bill were to pass, ballot access would become easier, for Congressional candidates, in two-thirds of the states. The bill does not pertain to presidential elections since the congressional authority to legislature for presidential elections is not as clear as it is for congressional elections.

Please ask your member of Congress to co-sponsor HR 2268. To read the bill, see are so many election law bills pending in Congress, it's important that ballot access is now included.


SB 777, which makes it easier for a party to remain on the ballot, was signed by Oregon's Governor on June 5. Currently, a party must poll 1% of the vote for any statewide race, every two years. From now on, it need not worry about the vote test if it has registration of .5%.


On June 25, the U.S. Supreme Court ruled 5-4 that the First Amendment does not protect the right of parties to decide for themselves, how much of their own money to spend on the campaigns of their own candidates (if the party and the candidate coordinate strategy). FEC v Colorado Republican Federal Campaign Committee, 00-191. Justice Souter wrote the opinion; Justice Thomas wrote the dissent. The decision upheld a 1974 law, limiting party spending to 7 per voter in Senate elections.

Back in 1996, the Court had ruled 7-2, in this same case, that political party spending for its own candidates cannot be limited, if the party and the candidate do not coordinate strategy with each other. At the time, four justices (Rehnquist, Scalia, Kennedy and Thomas) wanted to settle the issue for both types of party spending, and expressed the opinion that the First Amendment protects all party spending, whether it is coordinated or not. It is now apparent that, at the time, those 4 justices were the only justices persuaded to that viewpoint. The same 4 justices dissented in the new opinion.

The sole justification for the majority decision was the belief that political parties would act as conduits, for gifts from wealthy individuals earmarked for the campaigns of certain candidates. Since individuals may donate $20,000 to a political party, but only $2,000 (per election cycle) to a candidate, the majority feared that if parties could spend freely on their own candidates, these wealthy individuals could circumvent contribution limits, by giving to a party and instructing the party to spend the money for the candidate. This, in turn, would obligate the candidate, once in office, to do favors for the donor. "Earmarking" is already illegal, but the majority said it happens anyway, and the law prohibiting it is unenforceable.

The minority scoffed at this rationale, and said that if the problem is real, the more logical course of action is to lower the limit on how much an individual may give to a party.

The Republican Party probably made a mistake by not asking any political scientists to submit a supporting amicus curiae brief. Some political scientists did submit such a brief on the government's side, and the Court majority quoted from it.

The majority opinion said the notion that political parties are organized for the purpose of electing candidates is not entirely true. It said, "Parties, whether they like it or not, act as agents for spending on behalf of those who seek to produce obligated officeholders... Substantial donations turn the parties into matchmakers whose special meetings and receptions give donors the chance to get their points across to the candidates."

The majority opinion did not mention minor parties, but the dissent said, "If the Green Party were to receive a donation from an industry that pollutes, would the Green Party necessarily become, through no choice of its own, an instrument of the polluters?". This is the first time any Supreme Court Justice has mentioned the Green Party in an opinion.

A system which encourages political parties not to coordinate campaigns with their own candidates, is absurd; but that is now the law, until Congress changes it.

The majority opinion is 30 pages; the dissent is 19. See it at case was 15 years old, surely the slowest election law case in U.S. judicial history.


On April 30, the 8th circuit upheld a Minnesota judicial regulation, making it illegal for a candidate for judge to ever attend a meeting of a political party; to reveal his or her own party membership; or to seek or accept an endorsement from a party. Republican Party of Minnesota v Kelly, 247 F 3d 854. The vote was 2-1. The party has asked for a rehearing, which is pending.

The decision was written by Judge John Gibson, a Reagan appointee, and signed by Theodore McMillian, a Carter appointee. Judge C. Arlen Beam, a Reagan appointee, dissented.

The dissent mentions minor parties. It says, "Many smaller parties including the Right to Life Party, the Natural Law Party, and until this election cycle, the Green Party, tend to focus on only a few key issues. These groups are distinguished from advocacy groups only by having exercised their right to organize as a political party. Under the court's opinion (which lets judicial candidates speak at the meetings of other kinds of groups; only party meetings are forbidden), having done so will cost them their rights to engage in election-related speech and association."


On June 18, the U.S. Supreme Court refused to hear New York's appeal in Lerman v Board of Elections, 00-1360. The lower court had ruled that the state cannot make it illegal for someone to petition for a district office, just because that person is not a resident of that district.

This decision was yet another good consequence of the 1999 U.S. Supreme Court decision, Buckley v American Constitutional Law Foundation, which said that petitioning is protected First Amendment activity, and the state can't require initiative petitioners to be registered voters. Some of the states which require petitioners for candidates and political parties to be registered voters, have been stubbornly insisting that Buckley doesn't apply to such petitions, but in every lawsuit on this point so far, the courts have said, "Buckley applies to all kinds of petitioning."

This was the fourth time this year that the Court has refused to hear a state's appeal of a ballot access case. In February it had declined Illinois' appeal of a case similar to the New York case; in March and April it had refused to hear appeals from California and Colorado, over whether candidates for Congress must be registered voters (those two cases had been won in the lower courts, based on the 1995 U.S. Term Limits decision). By contrast, there were no instances of the Court refusing a state ballot access appeal, during the period 1982-2000.


On May 29, the Arizona State Court of Appeals ruled that the state's mid-June petition deadline for independent candidates is unconstitutional. This was the first court victory against a too-early deadline since August 2000, when a similar decision had been made in federal court about South Dakota's independent deadline.

The case, Browne v Bayless, cv 00-546, had lost last year in the lower court. It had been filed to get Harry Browne on the ballot as an independent candidate, after the Arizona Libertarian Party had refused to list him.

On June 13, the state asked the Appeals Court to clarify whether the decision extends only to independent presidential candidates, or all independent candidates. That request is still pending. Arizona's deadline for all independents, presidential and non-presidential alike, had been in September, until 1993.


1. Connecticut: the U.S. Supreme Court is being asked to decide whether anonymous campaign literature is protected, if it was circulated by a campaigner for a candidate. The Court won't say whether it will hear the case, until October, since it has gone home for the summer. The State Supreme Court had upheld the ban. Seymour v Election Enforcement Commission, 00-1360.

2. Florida: a U.S. District Court will hold a trial, starting in January 2002, over whether the state's ban on ex-felon voting is racially discriminatory. Johnson v Bush, 00-3542-cv.

3. New York: the Brooklyn Democratic Party announced that it would impose a party rule, that petitioners in the party's primary must be residents of the district. This would replace state law which had been struck down on that same point. A voter who desired to petition outside of his district then sued the party, and the party backed down. Nevertheless, the lawsuit is going forward, to settle whether a party can enact such rules. Yassky v King Co. Dem. Committee, 01-cv-3372, federal court, Brooklyn.

4. Northern Mariana Islands: the last B.A.N. mentioned that the 9th circuit had used the U.S. Supreme Court decision Bush v Gore to settle an election lawsuit. This was significant, since some commentators had felt that Bush v Gore could not be used as a precedent. That 9th circuit decision is now reported, so it can easily be cited. Charfauros v Board of Elections, 249 F 2d 941.

5. Virginia: in a few days, the Libertarian Party will file its lawsuit to get the word "Libertarian" on the ballot next to the names of its candidates in this year's state election.


1. Illinois: on June 15, SB 1109 passed the legislature. It permits any adult resident of the state to circulate any type of petition, anywhere in the state. The bill is a result of the Krislov decision last year. The 7th circuit had even said out-of-staters may petition, but the legislature felt this was just "dicta" ("dicta" is an offhand comment in the court, but not something germane to the case), since the person who brought the lawsuit was in fact a state resident.

2. West Virginia: On May 2, the Governor signed HB 3066, which repeals the requirement that petitioners must be registered voters in the state. There is now no requirement that the petitioners live in that state; any adult may petition there, regardless of residence.


1. Instant-Runoff Voting: Senator William Schluter has introduced SCR 112, which would provide for instant-runoff voting in all state and local New Jersey elections. If it passed, the voters would then vote on the idea.

2. Primary date: A3339 was signed into law on April 4. It changes this year's primary from June 5 to June 26. It has the indirect effect of moving the independent candidate petition deadline from June 5 to June 26 as well. The bill was passed because a leading Republican candidate dropped out of the race, and the party needed extra time to replace him.


The South Carolina legislature adjourned for the year, without passing either bill which would have injured minor parties. However, the bills could still pass in 2002. H3370 would impose filing fees on minor party nominees, and H3276 would ban fusion. H3273, which would help voters, by legalizing write-ins for president, also failed to pass but could pass next year.


The only state which may change its system of electing presidential electors, to one in which each congressional district makes its own decision, this year, is North Carolina. SB 70, which makes this change, passed the Senate on April 24 and is now pending in the House Rules Committee. Democrats support the idea; Republicans oppose it. The Democrats have a narrow 4-vote margin over the Republicans in the House, so it will pass sometime during July if the Democrats stick together.

Democrats haven't carried North Carolina in the electoral college since 1976. If each district elects its own elector, Democrats are certain to get at least a few electoral votes from the state, in future elections.


All special sessions of the Washington state legislature are now over, and no bill to revise the state's blanket primary passed. Briefs have been filed in federal court, which will design a primary for 2002.


The California Secretary of State has asked each qualified party, whether it desires to let independent voters vote in its 2002 primary. The Democratic, Republican, and American Independent (Constitution) Parties have said, "Yes". The Green and Libertarian Parties have said "No." Natural Law and Reform have not answered the question yet, but probably both of them will say "Yes". The Reform Party has a dispute over the identity of the true state chair, so its decision may be delayed.


The Coalition for Free and Open Elections, a loose grouping of most of the nation's minor political parties, recently incorporated itself.

COFOE's Board will soon decide whether to proceed with the proposed Oklahoma ballot access initiative. Oklahoma is the only state with truly bad ballot access laws, but which also has the initiative process. If sufficient support can be found, COFOE will sponsor an initiative, asking the Oklahoma voters if they wish to amend the ballot access laws. The only other two states in which the voters ever voted on what the ballot access laws should be, are Massachusetts and Florida. In both cases, the measures won.

COFOE appreciates the support it has received from readers of this newsletter, who have joined COFOE. Over the last few years, COFOE helped pay for ballot access lawsuits in South Dakota and Louisiana. The South Dakota case won; the Louisiana case is still pending. The South Dakota issue involved a law over how a minor party can qualify its own candidates for its own primary ballot. The Louisiana case attacks a state law which denies partisan ballot labels to all parties except those which polled 5% for president, or which have registration of at least 5% of the statewide total.


The Initiative and Referendum Institute has published a new book, The Battle Over Citizen Lawmaking. The author is M. Dane Waters, president of the Institute. It costs $28 and can be ordered from Carolina Academic Press at hyphen between "cap" and "press" is part of the web address.


A new web site will soon have the election returns for federal office, from all states, by precinct. Political Science Professor David Lublin of American University is in charge. site will also include census data on race.
Web Note: a quick perusal of the data reveals that they only identify presidential votes as "Bush", "Gore", and "Other". However, some lower races identify specific third-party candidates.


The Federal Election Commission has posted its calculation of the official vote cast for each presidential candidate, at the Nov. 2000 election. telephone (800)-424-9530 and ask for Public Records, for a paper copy.
Web Note: The FEC data is extremely accurate and complete and correctly attributes all third-party votes. The way they've chosen to organize the tables is a bit cumbersome, however.


According to Election Administration Reports, a newsletter published in Washington, D.C., for elections officials (and others), three write-in candidates defeated their ballot-listed opponents in a recent Illinois election, because the jurisdiction used optical scan ballots, not punchcard ballots.

The election, in April 2001, was for Park District in Madison County, Illinois. The ballot-listed candidates were unopposed, but just before the election, they placed an "extravagent" bond issue on the ballot, a move which generated vigorous opposition to the proposal and to the Board members themselves. They were all defeated by a write-in slate, by a margin of approximately 2,000 to 1,000. According to Election Administration Reports, optical scan ballots make it easy for voters to cast a write-in vote. They look like traditional paper ballots, and the write-in space is readily apparent to the eye. By contrast, most of Illinois votes with punchcard ballots, which require voters to write-in the candidate's name, the office, even the term of office, on the outside of the secrecy envelope. These moves are not intuitively easy or obvious.


The May 1 B.A.N. reported that the Federal Election Commission had voted to ask Congress to make it more difficult for presidential candidates to receive primary season matching funds. It should be noted that the FEC was not unanimous on that recommendation. Commissioners Brad Smith and Daryl Wold, both Republican appointees, voted "No". The FEC has six commissioners.


On June 7, British voters elected a new parliament. The United Kingdom is considered to have a two-party system, because the two major parties consistenly win over 90% of the seats in the House of Commons. However, at the recent election, 25.7% of the voters voted for a minor party candidate, or an independent candidate, for Commons.

The 2001 election was not unusual. The average minor party and independent candidate share of the vote, for all British Parliamentary general elections starting in 1922, has been 18.6%. 1922 is chosen as the starting point for this analysis, because the Conservative and Labour Parties have been the two major parties, starting with the 1922 election. Before the 1922 election, the two major parties were the Conservative and Liberal Parties. The Liberal Party still survives, now calling itself the Liberal Democratic Party.


On June 21, the Russian parliament voted 238-164 to approve a new law on how parties are recognized. Current law makes it easy for a party to register, although it must engage in difficult petition drives to place candidates on the ballot. Consequently, Russia has over 200 registered parties, but most of them never run candidates.

The new law makes it more difficult for a party to register. They will need 10,000 members nationwide, and at least 100 members in half of Russia's 89 provinces. The new law also provides for state financing for parties which polled 3% nationwide in parliamentary elections.


In a few days, the Clerk of the U.S. House of Representatives will have his publication Statistics of the Presidential and Congressional Election of Nov. 7, 2000 on the web. See includes a chart, showing the total vote cast for each party, for each house of Congress.
Web Note: As usual, the clerk's "recapitulation" table for presidential votes misrepresents third-party vote totals by not keeping all votes for the same candidate in a single column when the state listed them without a party label or with the word "independent". Only by studying the lengthy footnotes can the reader determine how many votes third-party candidates earned in those states -- and then must add those figures to obtain a true and correct total. Since this error has been pointed out to the clerk frequently over several years, it seems apparent that accuracy regarding third-party vote totals is not a priority for the Clerk of the House.


[graphic goes here]

This map shows the U.S. House of Representatives districts in effect after the 1990 census. The dark areas are districts which never had any minor party or independent candidate on the ballot, during the entire decade 1992-2001.

States with a substantial number of districts, in which the voters always faced a Democratic-Republican monopoly for U.S. House, 1992-2001, are Florida, Georgia, Illinois and Maryland. However, Florida and Maryland eased their ballot access laws in 1998, so any future such maps will probably only show Illinois and Georgia as "problem areas". A lawsuit is currently pending against the Georgia law, which is so restrictive, no one has complied with it, for U.S. House, since 1966 (although an independent qualified in Georgia in 1982, he was excused from the normal requirement due to a short time-frame in which to gather the signatures, due to late reapportionment).


1. California: June 5, 32nd district results: Democratic 74.80%; Republican 19.89%; Green 3.75%; Reform 1.55%. The Reform candidate was Ezola Foster, the party's vice-presidential candidate last year. In November 2000 the vote in the 32nd district had been: Democratic 83.54%; Republican 12.11%; Libertarian 2.36%; Natural Law 1.99%.

2. Florida: on October 16, there will be a special election in the First district. The filing period has already closed. The contest will be between a Republican, a Democrat, and an independent. First there will be a major party primary to choose the major party nominees.

3. Massachusetts: on October 16, there will be a special election in the 9th district. The filing period is still open. It is likely that a Republican, a Democrat, a Libertarian, and perhaps a Socialist Workers Party candidate, will run.

4. Virginia: June 19, 4th district results: Republican 52.02%; Democratic 47.82%; misc. write-ins .15%. In November 2000 only one candidate, a Democrat, had been on the ballot.

The last B.A.N. had said there was a Green candidate in this race, Dr. D. C. Amarasinghe. Even though he turned in 1,600 signatures (1,000 were required), he was told only 800 were valid. He filed a lawsuit in federal court alleging that it is unconstitutional to require petition signers to be registered voters, but was denied injunctive relief. Since the U.S. Supreme Court equates signing a petition with casting a vote, it seems clear that no court would rule that unregistered voters have a constitutional right to sign a ballot access petition. There was also an independent candidate in this race, but he withdrew before the ballots were printed.


Last month, the Mayor of St. Marys, Pennsylvania, Jerry Marshall, changed his registration from "Democrat" to "Green". He expects to run for re-election this year as the Green candidate.


On June 9, the New Mexico Libertarian state convention unanimously nominated Russell Means for Governor next year. Means has never run for office before, except that in 1987 he sought the Libertarian Party's presidential nomination. He is well-known for activism for Native Americans in South Dakota, as well as for movie roles.

Means is an ex-felon. In 1975, he and other activists refused to stand up, in a South Dakota courtroom, at the moment the judge walked into the room. According to several clergymen who were present, police rushed in, wearing full riot gear, and launched an attack on those who had refused to stand. Means and others were charged with "rioting to obstruct justice". He was the only person ever convicted under that 1889 law, which was repealed shortly afterwards. Charges against the others were dropped, but Means served a year in prison, during which time he studied philosophy and economics and served as a staffer to U.S. Senator James Abourezk.

A New Mexico state law bars ex-felons from running for office, but the State Constitution (which gives other requirements to be Governor) has no such prohibition. Means believes that he can win a lawsuit, arguing that the State Constitution's list of requirements is exclusive, and that the legislature cannot add to them. In addition, it is possible that South Dakota's Governor will pardon him.


For 2002, the Libertarian Party is now back on the ballot in Nebraska, and is finished in North Carolina. The party has 5,000 signatures in Ohio, 4,000 in Michigan, 2,300 in Arkansas, 1,500 in New Mexico, and 200 in Hawaii. The Natural Law Party has 2,500 in Ohio. The Green Party is just starting in Ohio. The Constitution Party is just starting in Montana.

For 2001, in Virginia, the Libertarian Party submitted a petition for two statewide offices. Assuming the petition is valid, this will be the first time a minor party has successfully petitioned in a Virginia gubernatorial race since 1977, when the U.S. Labor Party did it.

Ballot Access News. is published by and copyright by Richard Winger Note: subscriptions are available!
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Compilation copyright (c) 2001 Bob Bickford