Ballot Access News -- February 1, 2002

Volume 17, Number 11

This issue was originally printed on green paper.

Table of Contents
  25. Subscription Information



On January 16, U.S. District Court Judge J. Owen Forrester, a Reagan appointee, upheld Georgia's ballot access law for minor party and independent candidates for the U.S. House of Representatives. Cartwright v Barnes, 1:01-cv-1335. Plaintiffs, who are Libertarians, are appealing. Georgia requires a petition of 5% of registered voters. That is currently 14,800 signatures per district. No candidate for U.S. House in history has ever met a signature requirement that high, in any state.

No minor party candidate from Georgia, for U.S. House, has ever complied with the petition requirement in the entire 58-year history of the law. No independent candidate has complied with it since 1964 (back then, 8,000 signatures were needed). Judge Forrester acknowledged this point, but said that since the U.S. Supreme Court upheld the law in 1971, he was not willing to permit a trial.

The U.S. Supreme Court said in 1971 that Georgia's 5% petition was constitutional, because the evidence seemed to show that the burden was not severe. The evidence was scanty, but it showed that a statewide 5% petition had been completed in Georgia in both 1968 and 1966. The Supreme Court also felt that there were no "suffocating restrictions" in Georgia petitioning procedures.

In the current case, the plaintiffs assert that petitioning for U.S. House is different than statewide petitioning. Petitioning in a congressional district is far more difficult, because all the signatures must come from registered voters in the particular district. Most people don't know what district they live in, so a high proportion of the signatures will be invalid, because people from outside the district will sign. In addition, in 1971 Georgia didn't require notarization of petitions, according to the Supreme Court, but nowadays notarization is required.

Also, when the statewide 5% petitions were last completed, in 1966 and 1968, the petitions weren't due until September; now they are due in July. Plaintiffs had argued that since the law is different than it had been in the past, the case deserves a trial.

Judge Forrester is wrong to assert that the U.S. Supreme Court believes that 5% petitions are automatically valid. The Supreme Court itself overturned a 5% petition in 1979. The Supreme Court has repeatedly said "there is no litmus test" to determine valid ballot access laws from invalid ones, and that Courts must look at the precise state interests behind a ballot access restriction. In other words, they need to look at all the facts, and not apply a mechanical rule. Also, twice, the U.S. Supreme Court has said that a ballot access law which is almost never used, is almost certainly invalid.

Judge Forrester didn't mention any of those Supreme Court opinions. Nor did he mention a 1985 opinion from the 11th circuit (Georgia is in the 11th circuit) saying that even a 2.5% petition might be invalid, for president. Obviously, in that 1985 case, the 11th circuit didn't believe that 5% petitions are always automatically valid.

Forrester also failed to discuss the state interest for the 5% petition, except for one sentence.

Plaintiffs also argued that two recent Supreme Court decisions, based on Article One of the Constitution, striking down term limits laws for Congress, and also striking down discriminatory labels on the ballot, mean that the 5% petition is invalid. Under these two recent Supreme Court decisions, states cannot add to the qualifications for candidates for Congress, nor can states discriminate against a class of candidates for Congress (Article One of the U.S. Constitution sets forth how members of Congress are elected).

Forrester said the 5% petition is not a qualification; it is a procedure. A procedure is something that is needed for orderly election administration. However, historical evidence shows that the Georgia legislature did not create the 5% petition requirement in order to assure orderly elections. According to newspaper articles in 1943, when the petition was created, the law was passed to keep the Communist Party off the ballot, and also to discourage Republican candidates (under the 1943 law, even Republicans had to complete 5% petitions, if they had not polled as much as 5% at the last election for the office in question).

By denying a trial, of course it becomes impossible for plaintiffs to present evidence that the 5% petition is not a "procedure".

If Judge Forrester is correct, and if the 1971 U.S. Supreme Court decision really should be interpreted to mean that a 5% petition is always constitutional, then it would be constitutional for any state legislature to raise the petitions to 5%. If all state legislatures did this, an independent or minor party presidential candidate in 2000 would have needed 7,842,921 valid signatures to get on the ballot of all 50 states. In reality, 528,894 signatures were needed. As difficult as ballot access procedures are now for new parties and independent candidates, if Judge Forrester is correct, it would be constitutional for these requirements to be fifteen times more difficult than they are now.

See the chart below for what each state's requirement would have been in 2000, if the Forrester theory is correct and if each state exercised its right to have such requirements.

Judge Forrester's opinion is only 9 pages long. It is not posted on any web site. Anyone who desires a copy may send a self-addressed stamped envelope to Ballot Access News; a 34 stamp is sufficient.


On January 15, the Alabama House passed HB 40, which restores voting rights for ex-felons (unless they were convicted of impeachment, murder, rape, child molestation or treason). The vote was 65-34.

Four bills to restore voting rights for ex-felons are pending in Florida: S1826, S1880, H91 and H105.


1. Alabama: on January 17, Rep. Bob McKee introduced HB 317, to lower the vote test for a party to stay on the ballot from 20% to 10%.

2. Alaska: on January 16, the legislature override the Governor's veto of SB 103. That bill, which is now law, eases restrictions on how much money an individual may give to a political party.

3. Idaho: the legislature is about to repeal legislative term limits, even though the voters have twice passed such limits. Idaho will be the first state in which the legislators repealed term limits on themselves.

4. Indiana: on January 15, Rep. Mark Kruzan introduced HB 1344, to lower the number of signatures for minor party and independent candidates, and also to make it easier for a party to remain on the ballot. Also pending is HB 1101, which lowers the statewide petition for major party candidates (for primary ballot access) from 5,000 to 4,500 signatures.

5. Kentucky: on January 24, the House Elections Committee passed HB 32, which tells elections officials to keep a database showing which voters are registered as members of minor parties. The bill is backed by the Secretary of State.

6. Michigan: on January 29, the House Elections Committee heard HB 5237, which would make it easier for a party to remain on the ballot. The Committee hasn't acted yet.

7. Nebraska: on January 23, the Government Committee heard LB 975, which permits voters who vote in a primary to sign a petition for an independent presidential candidate. The Committee hasn't acted yet.

8. New Hampshire: on January 15, the House Election Committee heard bills to make it easier for political parties to remain on the ballot. The Committee may recommend lowering the vote test from 4% to 3%.

9. New Jersey: S2665, which would have formalized rules on how voters may register as members of minor parties, failed to pass before the legislature adjourned. There is no similar bill yet in the new session.

10. Ohio: Rep. Merle Kearns has agreed to introduce a bill soon to let petitioning candidates in the general election choose a partisan label, which would be printed on the petition and on the November ballot.

11. Oklahoma: Rep. Sue Tibbs has introduced HB 2654, which makes it easier for a party to get on the ballot and to remain on the ballot.

12. Tennessee: Senator Tim Burchett is about to introduce a bill for ballot labels for candidates who use the independent petition procedure.

13. Vermont: bills to establish Instant-Runoff Voting are S94 and H175. At least nineteen town meetings will vote in March on whether to endorse these bills.

14. Virginia: on January 17, Delegate Beverly Sherwood introduced HB 1256, to provide for ballot labels for the candidates of all political parties.

15. Washington: bills to implement Instant-Runoff Voting in general elections have been introduced. They are SB 6562 by Senator Dan Swecker and 6 co-sponsors, and HB 2698 by Rep. Hans Dunshee.

16. West Virginia: activists are optimistic that the legislature will repeal one particular ballot access restriction this year: the law that says petitioners must tell voters that if they sign the petition, then the voters can't vote in the primary. In fact, voters can do both; the instruction is literally an untruth.

17. Wisconsin: on January 9, a group of Republican Assemblymen introduced AB 710, to abolish same-day voter registration. Republicans control the Assembly but not the State Senate in this state.


The U.S. Senate is likely to vote on S. 565 during the first week of February. This is the bill that would set minimum standards for the states, for voting procedures. The chief author is Senator Chris Dodd, for the Senate Rules Committee. A somewhat similar bill, HR 3295, already passed the House. The two bills are not identical, and (assuming the Senate bill passes) a conference committee will write the final legislation.

S. 565 would mandate that states require voters who register by mail to show identification, the first time they vote. This provision was added to garner support from the Republican leadership. To read the bill, see and put S565 in the 'Search' box.


On December 31, 2001, SB 173 was signed into law, abolishing the "party lever" or "straight-ticket device" on Michigan ballots. There are now only 15 states which still use such a device: Alabama, Indiana, Iowa, Kentucky, Missouri, New Hampshire, New Mexico, North Carolina, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Utah, West Virginia and Wisconsin.

The Michigan Democratic Party will attempt to obtain enough signatures on a petition to hold a referendum on SB 173. The party is using its website ( to find volunteers to circulate its referendum petition.


On January 9, a U.S. District Court denied Louisiana's motion to dismiss the lawsuit Rosenthal v McKeithen, 00-612-C. As a result, there will be a trial in a few months.

The lawsuit challenges the state's policy of refusing to print any ballot label whatsoever on the ballot, for candidates, unless they are members of a qualified party. The plaintiff, Anita Rosenthal, an independent, sought to have "independent" on the ballot next to her name when she ran for Congress in 2000. This lawsuit is mostly funded by COFOE, the Coalition for Free & Open Elections.


The Court has set hearing dates for these two cases:

1. On February 26, the Court will hear Watchtower Bible & Tract Society v Stratton, Ohio, 00-1737. The issue is whether governments can require solicitors to obtain a permit. If the Jehovah's Witness church wins the case, probably West Virginia could no longer require petitioners to obtain a permit.

2. On March 26, the Court will hear Republican Party of Minnesota v Kelly, 01-521, over whether states can forbid judicial candidates from revealing their political ideas.

On January 22, the Court agreed to hear another election law case, Utah v Evans, 01-714. It concerns the dispute over whether Utah or North Carolina deserves a new member of the U.S. House of Representatives.


1. Alaska: on January 15, a lower state court ruled that the state's independent voters do not constitute a qualified political party. Non-Partisans v State, 3AN-00-5367. Alaska law says parties may qualify if they have registered members of least 3% of the last gubernatorial vote. The number of registered independents is greater than this, but the court found no intent on the part of these people to create a party.

Alaska (2): on January 18, two judges of the 9th circuit refused to overturn a lower court order, which suspended a state law limiting contributions to political parties (if the contributions are not to be used for candidates). If the 9th circuit later upholds the law, of course the law will again be in place; the ruling only covers the period while the lawsuit is pending. Jacobus v State of Alaska, 01-35666. The two judges were Michael Hawkins and Barry Silverman, both Clinton appointees.

Alaska (3): a case is pending in state court over whether the State Constitution grants petitioning and other First Amendment rights in shopping malls. Fred Meyer Stores v Heyworth, 3AN-01-12878.

2. Arizona: on January 10, the State Supreme Court agreed to hear the state's appeal in Browne v Bayless, cv-01-0383. The issue is the whether mid-June petition deadline is too early for independent presidential candidates. The case had been filed in 2000 by Harry Browne. He lost in the lower court but won last year in the mid-level court.

3. California: on January 15, a U.S. District Court in Los Angeles refused to order the state to print Art Olivier on the Libertarian primary ballot. Olivier is a candidate for Governor. Olivier v Jones, 01-cv-9902. The issue is a state law which bars candidates from a primary unless they were a registered member of the party for the previous three months. Olivier was registered "independent" during part of that period. The denial of relief was based mostly on Olivier's failure to file the lawsuit earlier. A decision on the validity of the state law has not yet been made.

California (2): on January 16, the State Supreme Court accepted San Francisco's appeal of Edelstein v Fado, 102530. The issue is whether the State Constitution requires write-in space on all ballots, even run-off ballots.

4. Georgia: the lawsuit over the validity of the state's new congressional districts is moving slowly. Georgia v Ashcroft, 01-cv-2111-EGS, federal court in D.C. While it is pending, it is impossible for minor party and independent candidates to be petitioning, since the districts are not yet final. This may make it possible for the number of signatures to be reduced, for this year only, when the districts are final.

5. Idaho: the state is appealing Idaho Coalition United for Bears v Cenarrusa, 02-35030, to the 9th circuit. The lower court had struck down the county distribution requirement for initiative petitions (see B.A.N. of Jan. 1, 2002). This case is sponsored by the Initiative & Referendum Institute.

6. Illinois: on January 3, James Tobin, Libertarian candidate for Governor in 1998, asked the U.S. Supreme Court to hear his appeal.

The issue is whether he may sue members of the State Board of Elections for removing him from the ballot, even though the staff had determined that he had enough valid signatures. The 7th circuit had said Board members have immunity. Tobin for Governor v Illinois State Board of Elections, 01-998.

Illinois (2): the Libertarian Party is a fully-qualified party in the 39th Representative district, which is entirely in DuPage County. Therefore, the party is entitled to a primary in that district. However, the county refuses to let anyone run for precinct committee (a party office), because it says that a party must be qualified in the entire county, to elect any precinct committeemen. The party contests that ruling, and recently filed a lawsuit to overturn it. Semon v DuPage Co. Board of Elections.

7. Massachusetts: on January 25, the State Supreme Court ruled that the legislature must fund the campaign public financing law passed by the voters in 1998. Bates v Sullivan, 08677. The vote was 5-2. Still to be decided is whether the legislature can simply repeal the public financing law. The Court will hold a hearing on that issue shortly.

8. New Mexico: the last B.A.N. said that the Green Party had filed a new lawsuit to restore its major party status. At the last minute, the party decided not to file, since its attorney had just been appointed to be a judge, and the party didn't have an alternate attorney ready to act.

9. Ohio: on January 10, the 6th circuit canceled the hearing in Nader v Blackwell, 00-4274, implying that the case doesn't deserve a hearing, because it is obvious the state will win. The issue is labels for candidates who use the independent procedure, and the state already won a similar Libertarian case last year. However, Ralph Nader has filed a rehearing request, on the grounds that the issue is different for presidential elections.

10. Oregon: on January 11, the State Supreme Court invalidated the legislative term limits law, on the grounds that the initiative violated the "single-subject" rule.

Oregon (2): last year, the Voting Integrity Project asked the U.S. Supreme Court to hear its case against Oregon's all-mail balloting system. The Court has asked the state to file a brief explaining why the Court shouldn't take the case. Voting Integrity Project v Keisling.

11. Texas: on November 5, 2001, the 5th circuit ruled that public housing authorities cannot prevent candidates for public office from handing out campaign literature in internal outdoor walkways. Vasquez v Housing Authority, 271 F 3d 198.

Texas (2): a case is currently pending in state court over whether the State Constitution grants petitioning and other First Amendment speech rights on the property of shopping malls. Independent Texans v H. E. Butt Grocery Co., GN1-03876, 345th jud., Travis Co.

Texas (3): supporters of Instant-Runoff Voting recently asked a state court to rule that the State Constitution does not prohibit charter cities from using that voting system. Austinites for IRV v Secretary of State, state court, Travis Co.

12. national: the lawsuit to open post office sidewalks for petitioning is making good headway. The judge will decide in a few months whether a trial is needed. If one is needed, it will be October 7, 2002.


Citizens in Charge has been founded to expand the initiative process to more states. Its first priority is to work for HF 643, now pending in the Minnesota legislature. HF 643 passed various House committees last year, and will soon be before the full House., (703)-580-7130.

The Initiative & Referendum Institute formerly was the only organization working to expand the initiative, but the Institute is busy defending the initiative process in states that already have it. Citizens in Charge is a "spin-off" of the Institute.


Winning Campaigns Online, by Emilienne Ireland and Phil Tajitsu Nash. Published by Science Writers Press,, (301)-263-9303. $24.95 plus shipping. Published in late 2001.

The purpose of this book is to persuade any candidate for public office that he or she ought to have a campaign website, and then to explain how to obtain one. The book is most interesting when it talks about bad campaign websites, and shows how a faulty website injured those campaigns. Of course, the book also features success stories. One of the most interesting tidbits is the conclusion that Ralph Nader could not have qualified for primary season matching funds in 2000, without his well-designed website. He used it to raise money. The authors feel that, if Nader hadn't raised the money, he would have qualified for the ballot in few states.

The book discusses "online checks", which are an alternative to credit cards. It also features an example of a campaign "volunteer kit" which can be downloaded. It refers to non-partisan organizations which maintain their own web sites, with space made available to candidates.

The book is not technical; it does not explain how to build a website. It is primarily motivational.


The Dec. 1, 2001 B.A.N. carried a review of The Rise and Fall of the Whig Party, and mentioned that it was selling for $38.50 on Amazon. The same book is for sale for $14.95 plus shipping of $3.50, from Edward R. Hamilton, Falls Village, Ct 06031,


The annual COFOE (Coalition for Free & Open Elections) Board meeting will be on March 2 in Washington, D.C. New officers will be elected, and plans to advance HCR 263 (the Congressional resolution on presidential debates) will be made. It is possible that Congressman Jesse Jackson, Jr., will attend.


The Democratic National Committee has repealed a national party bylaw which did not recognize presidential primaries earlier than March (except for New Hampshire). As a result, the presidential primary battles for 2004 are likely to be settled earlier than ever, perhaps even in February. The Republicans never had such a rule.


1. South Carolina, U.S. House, 2nd district, Dec. 18, 2001: Republican 73.09%; Democratic 25.42%; Libertarian .76%; Constitution .73%.

2. Georgia, state House, dist. 16, Jan. 22, 2002: Grasse (Republican) 456 votes, 39.07%; Auffrey (Republican), 359 votes, 30.76%; Korff (Constitution), 352 votes, 30.16%. Georgia special elections are technically non-partisan, but the party affiliation of each candidate was known. Bryan Korff, the Constitution Party candidate, only missed the run-off by 7 votes.

3. Oklahoma, U.S. House, 1st dist., Jan. 8, 2002: Republican 53.79%; Democratic 44.34%; Libertarian 1.53%; independent .34%.


In 2002, for the first time in 14 years, both major parties are running a candidate for every Texas statewide office. Since parties remain on the ballot by polling 5% in any statewide race (or 2% for Governor), this new development will make it more difficult for the state's two ballot-qualified minor parties to re-qualify in November. The two parties on the ballot are Libertarian and Green.


Senator Ramon S. Guerrero of the Northern Mariana Islands was elected as the candidate of the Commonwealth Reform Party, back in November 2000. The Northern Mariana Islands is a possession of the United States, in the western Pacific Ocean. Guerrero considers himself a member of the U.S.-based American Reform Party, which split off from the Reform Party in 1997.


  1998 Registration Total   Actual 2000 Requirement   5% of 1998 Registration Total
Alabama 2,448,884 5,000 122,445
Alaska 456,142 2,410 22,808
Arizona 2,264,291 9,598 113,215
Arkansas 1,471,971 1,000 73,599
California 15,707,307 86,212 785,366
Colorado 2,563,441 0 128,173
Connecticut 1,964,763 7,500 98,239
Delaware 467,388 241 23,370
Florida 8,220,266 0 411,014
Georgia 3,909,373 39,094 195,469
Hawaii 601,404 602 30,071
Idaho 661,433 4,918 33,072
Illinois 6,706,342 25,000 335,318
Indiana 3,693,982 30,717 184,700
Iowa 1,769,827 1,500 88,492
Kansas 1,513,685 5,000 75,685
Kentucky 2,590,339 5,000 129,517
Louisiana 2,689,193 0 134,460
Maine 942,529 4,000 47,127
Maryland 2,569,316 10,000 128,466
Massachusetts 3,718,528 10,000 185,927
Michigan 6,915,613 30,272 345,781
Minnesota 3,483,000 2,000 174,150
Mississippi 1,807,118 0 90,356
Missouri 3,635,991 10,000 181,800
Montana 639,241 5,000 31,963
Nebraska 1,056,401 2,500 52,821
Nevada 897,865 4,099 44,894
New Hampshire 747,397 3,000 37,370
New Jersey 4,538,944 800 226,948
New Mexico 912,964 2,494 45,649
New York 10,551,375 15,000 527,569
North Carolina 4,764,036 51,324 238,202
North Dakota 476,000 4,000 23,800
Ohio 7,109,109 5,000 355,456
Oklahoma 2,050,606 36,202 102,531
Oregon 1,923,557 13,755 96,178
Pennsylvania 7,258,837 21,739 362,942
Rhode Island 632,955 1,000 31,648
South Carolina 2,021,766 10,000 101,089
South Dakota 452,901 2,602 22,646
Tennessee 3,005,167 25 150,259
Texas 11,538,235 37,385 576,912
Utah 1,115,862 1,000 55,794
Vermont 402,603 20 20,131
Virginia 3,725,921 10,000 186,297
Washington 3,118,331 200 155,917
West Virginia 1,007,811 6,365 50,391
Wisconsin 3,900,000 2,000 195,000
Wyoming 237,868 3,320 11,894
TOTAL 156,857,878 528,894 7,842,921

This shows how many signatures were needed in 2000 to get a minor party or independent presidential candidate on the ballot, and how many would have been needed, if every state had a law like the law which was upheld in 1971 in Jenness v Fortson.


On December 7, 2001, a jury in Virginia ruled that the Reform Party must pay $70,000 to the company which planned to handle the arrangements for the party's proposed national convention in Minneapolis in 2000. Reform Party of U.S. v Young, Fairfax Co. Circuit Court 192721.

Ironically, the lawsuit had been filed by the Reform Party to recover $200,000 already paid to the company. If the lawsuit had never been filed, the party would have been spared the need to pay anything [more] to the company.

The lawsuit forced the jury to deal with the question of internal Reform Party decision-making. In late 1999, the party's national Executive Committee had voted to hold the party's presidential nominating convention in Long Beach, California. But then the party's national committee, in a mail ballot, overturned that decision and chose Minneapolis. At that point, the party's Treasurer, Ronn Young, entered into a contract with a company to handle administrative work for the Minneapolis convention. The contract was for $270,000. The company received $200,000. Later, the Executive Committee charged that the National Committee may not make any decisions except in a physical meeting, and called the National Committee into an emergency meeting in Nashville, Tennessee. That meeting chose the Long Beach site, and also recalled the party's national chairman, Jack Gargan, and the treasurer. The jury had to decide whether the party's treasurer had been justified into entering into the contract for the Minneapolis convention. The jury felt that the treasurer's action was justified at the time, so the party is liable for the full amount specified in the contract.


For more than 30 years, the Lyndon LaRouche movement published a newspaper, New Solidarity, later changed to New Federalist. Their frequency was never less than weekly. However, no issue has been published since the issue dated August 13, 2001. The paper says it will resume publishing when finances improve.


On January 19-20, in New Orleans, the Green Alliance was launched. It will act as a national "club" within the Green Party US, to preserve the ideas and interests of most members of the former The Greens/Green Party USA.


A new party has qualified for the 2002 ballot in Nebraska. It is called "The Nebraska Party" and has a conservative platform. See, (402)-586-2579.


Louis Fisher, 1972 presidential candidate of the Socialist Labor Party, died on November 18, 2001 in Illinois. He was 88. Fisher was the party's top vote-getting presidential candidate. The Socialist Labor Party contested every presidential election 1888 through 1976, and Fisher's 1972 total of 53,814 was the highest presidential vote total in party history. The Socialist Labor Party still exists and still publishes a monthly newspaper, but it hasn't run any candidates for public office since 1981. See


The Libertarian Party is finished in Hawaii. The Missouri Green Party has started petitioning. The Mississippi Green Party has asked the state to recognize it as a party (in Mississippi, no petition is needed; a group merely needs to show that it has a state organization). The Mississippi Secretary of State has asked for more details.


1. Green: Philadelphia, July 18-21. Speakers are still being chosen. See

2. Libertarian: Indianapolis, July 3-7. Speakers will include Otto Guevara, a Libertarian congressman in Costa Rica, and Arizona Superior Court Judge John Buttrick, a party member. See

3. Reform: dates and city not chosen yet, but it will be in an eastern state in July or August.

Ballot Access News. is published by and copyright by Richard Winger Note: subscriptions are available!
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Compilation copyright (c) 2002 Bob Bickford