|This issue was originally printed on light blue paper.|
The year 2001 is almost over, and the U.S. Supreme Court has refused every one of the 36 election law cases brought before it this year.
This is the first time since 1987, and only the second time since 1961, that the Court has not taken a single case involving election law. Although the Court only takes between 1% and 2% of all appeals, generally it agrees to hear 10% of the election law cases that are presented to it. The Court accepted an average of eight election law cases per year, during the period 1963 through 1973, and had been averaging three cases per year in recent times.
On October 1, the Court turned down the Ohio Libertarian Party's challenge to the state's practice of refusing to print partisan labels on the ballot (other than the word "independent"), for candidates who get on the general election ballot by petition. Schrader v Blackwell, 01-59.
Although this was bad news for advocates of equality for minor parties, it wasn't surprising, given the Court's apparent disinterest in election law cases this year. During 2001, the Court has declined to hear appeals brought by the state governments of California, Colorado, Illinois, Montana, New York, North Carolina and Virginia. These states had lost cases in the lower courts on ballot access, campaign finance, or redistricting. Usually, when a state law is declared unconstitutional and the state asks for U.S. Supreme Court review, the Supreme Court hears the state's appeal. 2001 was a unique year, in that all such state government appeals (on election law) were refused.
Other high-prestige plaintiffs who sought U.S. Supreme Court review in election law cases in 2001, but failed to get it, were the National Association for the Advancement of Colored People and the U.S. Chamber of Commerce.
The Court declined to hear a case on mandatory disclosure of Social Security numbers as a condition for registering to vote. It refused three cases on the initiative process, and a case on state censorship of a campaign brochure.
One could conclude that members of the Court are tired of election law, perhaps as a result of the storm of criticism of the December 12, 2000 decision Bush v Gore. Of course, the Court has released a few election law decisions in calendar year 2001, but they were cases which had been accepted by the Court in calendar year 2000, not 2001.
2001 isn't over yet, and there is one pending election law case which the Court may choose to hear. See the next article.
On September 24, the Minnesota Republican Party asked the U.S. Supreme Court to hear Republican Party of Minnesota v Kelly, 01-521. Since 1997, Minnesota has forbidden candidates for judge from attending or speaking at any political party gathering. In addition, it is illegal for such a candidate to "seek, accept or use" an endorsement by a party. Thus, although the Republican Party was free to endorse a particular candidate for Justice of the Supreme Court, the candidate, and members of his immediate family, were forbidden to mention the endorsement.
The lower courts had upheld the restrictions. The Supreme Court will probably decide whether to hear the appeal before the end of the year.
The Republican appeal is being handled pro bono by the James Madison Center, which defends the First Amendment in election law matters. See http:///www.jamesmadisoncenter.org/for a copy of the brief to the Supreme Court.
Last month, New Jersey elections officials began permitting voters to register as members of parties other than Republican", "Democratic", or "independent". This is because the minor parties won the court case (see September B.A.N.), and the state decided not to appeal. The state elections office has not yet decided when the first tally will be, but it almost certainly won't be until 2002.
State Senator Bill Schluter has introduced S 2665, to amend the election law. It provides that any group which has bylaws, a state committee, a mechanism for raising and spending money, and which runs candidates in its name, will qualify to let people register into it.
The bill provides that the Voter Registration form shall contain a blank line, to be used by a voter to choose a party. Currently, the Voter Registration form doesn't ask about party affiliation. A separate small form, called the "Party affiliation declaration form", has been used to ask people if they wish to register Republican or Democratic; but that form will be obsolete. Until the Schluter bill passes, voters who wish to register as a member of another party may use the "Party affiliation declaration form".
On October 16, Rep. Leon Drolet of Michigan introduced HB 5237, which would make it easier for a party to remain on the ballot. Current law requires it to poll the needed number of votes for its candidate who is listed closest to the top of the ballot (president in presidential election years, and governor in mid-term years, are the offices closest to the top of the ballot). The bill would let a party meet the vote test by the vote for any of its statewide candidates.
1. Arizona: Back on June 1, 2001, the Arizona State Appeals Court had ruled that the state's June petition deadline for independent candidates is unconstitutionally early. In response, the Secretary of State had asked the Court to amend the decision so that it only applies to independent presidential candidates. However, on October 11, the Court rejected that request. The state plans to appeal to the State Supreme Court.
2. California: on October 2, a Libertarian candidate for Congress filed a challenge to a law which bars candidates from filing in a primary, unless the candidate has not been a member of another party for the previous year. Van Susteren v Jones, 01-1777-BTM, federal court, San Diego. On October 11, the party passed a resolution, expressing the party's will that any registered Libertarian should be able to file in the party's primary for public office, regardless of the candidate's past affiliation, at least for the 2002 election. This strengthens the lawsuit.
3. Illinois: on October 5, the 7th circuit ruled that state election board members have absolute immunity (as individuals) from civil lawsuits. Tobin for Governor v Illinois State Board of Elections, 00-3097. The case had been filed by the Libertarian gubernatorial candidate, after the Board removed him from the ballot in 1998 even though the Board's staff had found that he had enough valid signatures. The 7th circuit said Election Board members should be treated in the same fashion as judges, who also have immunity from being sued as a result of their decisions.
4. Kentucky: on September 27, the State Supreme Court struck down a law making it illegal for an employer to communicate any opinion about candidates to his or her employees. Registry of Election Finance v Blevins, no. 99-sc-0890-dg.
5. New Mexico: on October 2, the State Supreme Court asked the Secretary of State to respond to the Green Party's lawsuit on whether it is a major party. Green Party of New Mexico v Vigil-Giron, 27158.
The issue is whether a major party must poll 5% of the statewide vote for any candidate, or whether only the vote for its gubernatorial or presidential candidate counts. After the Court reads the Secretary of State's response, it will decide whether to hear the case. It refused to hear a similar Libertarian case in 2000.
6. New York: on October 4, the 2nd circuit dismissed the interesting case Van Wie v Pataki, 00-7379, on the grounds that it is moot. The issue is voter registration. An independent voter cannot change his or her registration, to join a party (and be permitted to vote in a party primary) shortly before a primary election. But an unregistered person is free to register to vote as a party member, just before a primary. Therefore, unregistered persons have more freedom than registered independents. A registered independent who had wanted to vote in the 2000 presidential primary sued, but the judges refused to make a ruling. Generally, election law cases are immune from the mootness rule. The candidate has asked for a rehearing.
7. Ohio: the U.S. Supreme Court has agreed to hear a case over whether a city can force door-to-door canvassers to obtain and display a permit. Watchtower Bible and Tract Society v Stratton, Ohio, no. 00-1737. If the Court invalidates the requirement, it is likely that West Virginia's law, requiring petitioners (for minor party and independent candidate ballot access) to obtain a permit would also be invalid.
8. Texas: on October 16, the State Court of Appeals in Dallas invalidated a state ban on anonymous campaign ads. State of Texas v John Doe, 05-99-01091-cr.
9. Virginia: on September 17, the 4th circuit ruled that a federal regulation defining "express advocacy" is unconstitutional. Virginia Society for Human Life v Federal Election Commission, 00-1252. Committees which spend money to influence federal elections must comply with reporting requirements. The ambiguity comes over the definition of "influencing an election".
An FEC regulation, adopted in 1995, says this includes advertising which "a reasonable person" could only conclude is for the purpose of helping or opposing a candidate. The Court said this is too broad; only ads which include words which in and of themselves advocate the election or defeat of a candidate can be regulated.
On September 28, the State Court of Appeals dismissed the lawsuit brought by the Libertarian Party without prejudice, on the grounds that the party seems to be on the ballot. But on October 16, the Secretary of State removed it from the ballot. The party immediately filed a petition for rehearing, which is still pending. State ex rel Hartman v Bd. Elections, 80276, 8th dist.
Annapolis, the capital city of Maryland, has partisan elections. Until last month, the city's definition of "qualified political party" was one that had polled 3% of the vote in the last city election. There was no method for a new party to ever come into existence.
As a result of Green Party lobbying, the city expanded its definition last month. A new party can gain a place on the city ballot if it meets the state law definition of "party". New parties may qualify for the state ballot by petition.
At the beginning of 2001, it was expected that Congress would enact meaningful legislation to help the states buy modern voting equipment. It was also thought likely that Congress would mandate various safeguards for voters.
However, the only bill of this type which is close to passing is the National Defense Authorization bill, S.1438 and H.R. 2586. It includes several provisions to make it more likely that military and overseas absentee ballots will be counted. The bills have passed both houses of Congress and are in a conference committee.
The charts below show the most successful minor party candidates for Governor and U.S. Senator, for each state, for the period 1948 through 2000. "Minor party" means any party other than the Democratic and Republican Parties. "Most successful" means the candidate who got the highest percentage of the vote.
The charts show that, in the last half-century, minor parties have done better in gubernatorial races than in U.S. Senate elections. Minor parties won three gubernatorial races but only one Senate race. The average "best" gubernatorial showing is 9.3%, compared to 5.8% for "best" Senate showings. In 32 of the 50 states, the best gubernatorial result was better than the best Senate result.
The decade with the most "best" entries is the 1990's, with 50 of the 100 data points. Second was the 1970's, with 31. The year 2000 alone had seven "bests". By stark contrast, the 1950's had only two; the 1960's only had four; and the 1980's only had six.
The Libertarian Party has the most "best" entries, with 25 out of the 100. Second was the party formed by the George Wallace movement, which had various names in different states, but usually contained the word "American". It had 24 (the Conservative Party of Kansas was part of that party).
The Libertarian Party national committee recently endorsed HR 2268, Congressman Ron Paul's bill to outlaw restrictive ballot access laws in congressional elections. The Green Party US and the Reform Party had already endorsed it. Anyone who sends B.A.N. a copy of a letter from any member of Congress, commenting on HR 2268, gets a free 3-month subscription (or a 3-month extension of an existing subscription).
Congresswoman Maxine Waters has introduced HR 2830, which would restore voting rights for ex-felons in federal elections.
Texas voters will vote on November 6, 2001, on 19 constitutional amendments. One of them, Prop. 6, provides that the state legislature may choose the state's presidential electors, "if the governor determines that it is reasonably likely that the outcome of the election will not be clearly determined in time for the electors to meet".
In Pennsylvania, Greens have given up the search for a sponsor for a bill to improve the ballot access laws. In Michigan, Rep. Michael Bishop, a Republican, has introduced HB 5075, to eliminate the straight-ticket ("party circle") device on ballots. In New Hampshire, Rep. Richard Brewster, a Republican, will introduce a bill in 2002 to ease the vote test for a party to remain on the ballot.
Science Magazine is a weekly with large circulation. Its May 17, 2001 issue carried an article in favor of "Approval Voting", which is the simplest of all the alternative vote systems. Under "Approval Voting", voters do not rank candidates. They merely vote for as many candidates as they wish, even if only one person is to be elected. For example, presumably, under Approval Voting, at the November 2000 election, many voters would have cast a vote for both Al Gore and Ralph Nader.
The October 12 issue of Science carried three letters to the editor about the original article. The article was written by Professors Steven Brams of New York University and Dudley Herschbach of Harvard.
The August B.A.N. carried a chart, showing the amount of money donated to each party by taxpayers on state income tax forms. However, that chart omitted Alabama data, since Alabama officials hadn't compiled it yet. Alabaman taxpayers donated $6,167 to the Republican Party and $5,073 to the Democratic Party.
The February 1 B.A.N. carried a report on COFOE (Coalition for Free & Open Elections) and its annual board meeting. The article said that COFOE hoped to qualify an initiative in Oklahoma, to reduce the number of signatures needed to place a party on the ballot. Of all the states which have the initiative, Oklahoma has the worst minor party ballot access laws.
The plan was never carried out. The Libertarian Party tentatively offered $25,000 toward the costs of getting the initiative on the ballot, and COFOE was willing to spend its resources, but no other party agreed to contribute substantially. Oklahoma requires an initiative to be signed by 8% of the last vote cast, which would have been almost 100,000 signatures for an initiative on the 2002 ballot.
It is possible the plan will be carried out in 2003. If the turnout in Oklahoma in 2002 is the same as it was in 1998, only 70,000 signatures will be needed to get an initiative on the 2004 ballot. Also, it is likely the Libertarian Party, and perhaps at least one other party, will circulate a petition to get itself on the ballot in 2004 (which will require approximately 45,000 signatures), and it will be fairly inexpensive to ask voters to sign both a party petition and the initiative petition.
The County Clerk of El Paso County, Colorado, has posted the entire text of ten final reports about the 2000 election on his web page. See http://www.co.el-paso.co.us/clerkrcd/and click on "2000 election reports". The reports are from the National Commission on Election Standards (a group of county officials); The National Task Force on Election Reform (sponsored by the Election Center); The Florida Governor's Task Force; The Florida State Senate Elections Committee; The CalTech/MIT Voting Technology Project; The Constitution Project; The U.S. Civil Rights Commission; The U.S. General Accounting Office; the National Commission on Federal Election Reform; and the National Association of Secretaries of State.
|Alabama||1970||National Democratic||John Logan Cashin||125,491||14.68%|
|Alaska||1990||Alaska Independence||Walter J. Hickel||75,721||38.95%|
|Arkansas||1970||American||Walter L. Carruth||36,132||5.93%|
|California||1978||Libertarian||Edward F. Clark||377,960||5.46%|
|Connecticut||1990||A Connecticut||Lowell P. Weicker||460,576||40.36%|
|Delaware||1992||A Delaware||Floyd E. McDowell||3,779||1.36%|
|Florida||1990||Socialist Workers||Rose "Jackie" Floyd||597||write-ins|
|Hawaii||1994||Best||Frank F. Fasi||113,158||30.67%|
|Illinois||1986||Illinois Solidarity||Adlai E. Stevenson, III||1,256,725||39.97%|
|Louisiana||1960||States Rights||Kent H. Courtney||12,515||2.47%|
|Maine||1998||Green||Patricia La Marche||28,722||6.82%|
|Maryland||1970||American||Robert Woods Merkle||19,184||1.97%|
|Michigan||1982||Tisch Indp. Citizens||Robert E. Tisch||80,288||2.64%|
|Mississippi||1999||Reform||Jerry L. Ladner||8,208||1.07%|
|Missouri||1996||Libertarian||J. Mark Oglesby||51,432||2.40%|
|Montana||1968||New Reformist||Wayne Montgomery||11,199||4.02%|
|Nebraska||1970||American||Albert C. Walsh||10,913||2.36%|
|Nevada||1974||Independent American||James Ray Houston||26,285||15.52%|
|New Hampshire||1970||American||Meldrim Thomson, Jr.||22,033||9.91%|
|New Jersey||1997||Libertarian||Murray Sabrin||114,172||4.72%|
|New Mexico||1994||Green||Roberto A. Mondragon||47,990||10.26%|
|New York||1990||Conservative||Herbert I. London||827,614||20.40%|
|North Carolina||1992||Libertarian||Scott McLaughlin||104,983||4.05%|
|North Dakota||1976||American||Martin Vaaler||5,619||1.89%|
|Rhode Island||1994||Cool Moose||Robert J. Henley, Jr.||32,822||9.08%|
|South Carolina||1990||American||John R. Peeples, Jr.||17,302||2.28%|
|South Dakota||1994||Libertarian||Nathan A. Barton||12,825||4.12%|
|Tennessee||1970||American||Douglas L. Heinsohn||22,945||2.07%|
|Texas||1972||La Raza Unida||Ramsey Muniz||214,118||6.29%|
|Utah||1992||Independent Party||Merrill Cook||255,753||33.54%|
|Virginia||1965||Conservative||William J. Story, Jr.||75,307||13.39%|
|West Virginia||1996||Libertarian||Wallace Johnson||16,171||2.57%|
|Wisconsin||1974||American||William H. Upham||33,528||2.84%|
|Wyoming||1958||Economy||Louis W. Carlson||4,979||4.42%|
This chart has the minor party gubernatorial candidate who received the highest share of the vote, 1948-2000. See story above.
|Alabama||1978||Prohibition||Jerome B. Couch||34,951||6.39%|
|Arkansas||1998||Reform||Charley E. Heffley||18,898||2.70%|
|California||1952||Indp. Progressive||Reuben W. Borough||542,270||11.98%|
|Colorado||1996||Natural Law||Randy Mackenzie||41,620||2.83%|
|Connecticut||1994||A Connecticut||Joseph I. Lieberman||280,049||25.94%|
|Delaware||1994||Libertarian||John C. Dierickx||3,387||1.70%|
|Hawaii||1974||Peoples||James D. Kimmel||42,767||17.09%|
|Idaho||1972||American||Jean L. Stoddard||6,885||2.22%|
|Indiana||1974||American||Don L. Lee||49,592||2.83%|
|Iowa||1992||Natural Law||Stuart Zimmerman||16,403||1.27%|
|Kansas||1972||Conservative||Gene F. Miller||35,510||4.07%|
|Kentucky||1974||American||William F. Parker||17,551||2.36%|
|Louisiana||1972||American||Hall M. Lyons||28,910||2.66%|
|Mississippi||1996||Reform||Ted C. Weill||13,861||1.58%|
|Nebraska||1988||New Alliance||Ernie Chambers||10,372||1.55%|
|Nevada||1974||Independent American||Jack C. Doyle||10,887||6.42%|
|New Hampshire||1996||Libertarian||Ken Blevens||22,261||4.52%|
|New Jersey||1966||Conservative||Robert Schlachter||53,606||2.52%|
|New Mexico||1996||Green||Abraham J. Gutmann||24,230||4.39%|
|New York||1970||Conservative||James L. Buckley||2,179,640||36.91%|
|North Carolina||1992||Libertarian||Bobby Y. Emory||85,948||3.33%|
|North Dakota||1998||Reform||Harley McLain||3,598||1.69%|
|Ohio||1994||U.S. Taxpayers||Joseph J. Slovenec||252,031||7.33%|
|Oklahoma||1994||Natural Law||Dan Corn||47,552||4.84%|
|Pennsylvania||1992||Libertarian||John F. Perry||219,319||4.57%|
|Rhode Island||1996||Natural Law||Donald W. Lovejoy||5,327||1.47%|
|South Carolina||1992||Libertarian||Mark Johnson||22,962||1.95%|
|South Dakota||1998||Libertarian||Byron Dale||3,796||1.45%|
|Tennessee||1978||American||Thomas J. Anderson||45,908||3.97%|
|Vermont||1976||Liberty Union||Nancy Kaufman||8,801||4.66%|
|West Virginia||2000||Libertarian||Francis J. Whelan||12,627||2.09%|
|Wisconsin||1974||American||Gerald L. McFarren||24,003||2.00%|
This chart has the minor party Senate candidate who received the highest share of the vote, 1948-2000. See story above.
Special congressional election results, October 16:
1. Massachusetts 9th: Lynch, Democrat, 44,943 (65.21%); Sprague, Republican, 22,645 (32.85%); Gallagher-Long, Conservative, 827 (1.20%); Satter, Socialist Workers, 510 (.74%). Only 68,925 votes were cast. In November 2000, 248,690 had been cast for this office. The Libertarian Party had tried to nominate a candidate in this race, but his petition (which needed 2,000 signatures of registered Libertarians or registered independents) failed.
In November 2000, the same district's results were Democratic 77.6%, Republican 19.6%, independent 2.8%.
2. Florida 1st: Miller, Republican, 52,798; Briese, Democrat, 22,462; Ralls, independent 5,071; total 80,331. In November 2000, the same district only had one candidate, a Republican, on the ballot; he got 226,473 votes.
A special legislative election was held October 23 for the Massachusetts House, Middlesex County 7th district. The results were Democratic, 68%; Republican, 22%; Libertarian 10%. The results in the same district in November 2000 were Democratic, 70%; Republican 24%; Libertarian 5%.
The deadline for new parties to qualify for the 2002 ballot in California was October 2. Any new party seeking to qualify needed 86,212 registered members. The Peace & Freedom Party increased to 66,796. It had 64,128 registrations at the previous tally, in January 2001. The party's total would have been higher, if the state counted inactive voters. However, since inactive voters are not permitted to sign petitions, the state believes that they should not count toward party qualification either.
The Labor Party has two candidates in non-partisan elections on November 6, 2001. Robin David is running for San Francisco Municipal Utility District, and Vicky Knight for Cleveland Board of Education.
The Federal Election Commission expects to announce its decision concerning the Green Party US on November 15.
On October 21, Russell Means withdrew as the Libertarian Party's gubernatorial candidate in 2002. Instead, he will run as an independent. No one has ever before qualified as an independent for Governor of New Mexico; 17,958 signatures are needed.
The Libertarian Party is finished in Michigan, and the Green Party is half finished in Utah.
The petitioning chart in the October 1, 2001 B.A.N. erroneously showed that the Green Party is already on the ballot in Utah and South Carolina. B.A.N. had erroneously believed that the ballot-qualified United Citizens Party of South Carolina had applied to be the Green Party affiliate in South Carolina, but this is not true. The United Citizens Party did put Ralph Nader on the November 2000 ballot as its presidential candidate, but it prefers to remain organizationally independent.
In Utah, Ralph Nader polled over 2% of the vote in November 2000, and he had "Green" next to his name on the ballot. The Utah election law defines "party" as a group which polled 2% of the statewide vote. However, Utah election officials take the position that since Nader qualified as an "independent", his votes don't count toward "party" status, even though "Green" was on the ballot next to his name. Rather than fight this ruling, the party is collecting the 2,000 signatures needed for new party status.
The website http://www.politics1.com/is very useful,
for anyone who wishes to find the website of any U.S. political party. Click on
the "political party" link. Each party is described, and clicking on the name of
that party takes one to that party's website. The politics1 site is updated
Webmaster's note: another exhaustive list of parties is
available at the DC's
Political Report site -- without the useful related links and explanatory
and/or editorial comments that Politics1 offers, but with individual links to
every state affiliate party in most cases.