Ballot Access News -- June 1, 2002

Volume 18, Number 2

This issue was originally printed on pink paper.

Table of Contents



On May 22, HB 5237 passed the Legislature. Governor John Engler has already said he will sign it. HB 5237 makes it easier for a party to remain on the ballot.

The old law only required parties to poll a number of votes equal to 1% of the winning Secretary of State candidate's vote total. This number is now 20,555. The problem is that this requirement wasn't applied to a minor party's highest vote-getter. Instead, it was applied to the candidate of that party who was closest to the top of the ballot. In presidential election years, of course, president is at the top of the ballot; in mid-term elections, governor is at the top.

Thus, in a presidential election year, if a minor party had a presidential candidate on the ballot, he or she had to poll 20,555 votes (as of the 2000 elections). The same principle applied to Governor, in mid-term years. It didn't matter that a minor party's other statewide candidates might have polled hundreds of thousands of votes; only the vote for the party's top-most candidate counted.

Ironically, if the minor party didn't run a candidate for president in Michigan, its chances of remaining on the ballot were much higher. It's easier for most minor parties to poll a high vote for a less important office, than for president.

The new law counts a party's highest vote-getting candidate. Michigan law now resembles the laws of Alabama, Colorado, Connecticut (in a limited way), District of Columbia, Georgia (for statewide office only), Hawaii, Idaho, Illinois (for statewide office only), Kansas, Maryland, Massachusetts, Minnesota, Missouri, Montana, Nebraska, Nevada, Oregon, Pennsylvania, South Carolina, Texas, Utah, Vermont, Virginia, Washington, and Wisconsin. Two states, New Hampshire and Wyoming, count several statewide offices but not all of them.

The Communist Party had filed a lawsuit against Michigan's old ballot retention law in 1974, but the old law had been upheld.

If the new law had been in effect in the past, these parties would have been helped (listed chronologically):

Socialist Labor Party: would have stayed on the ballot after the 1970 election, thus avoiding the need to re-petition; the same would have been true after the 1972 election.

Human Rights Party (in other states, known as the Peoples Party or the Peace & Freedom Party) would have felt free to put its presidential candidate, Dr. Benjamin Spock, on the November 1972 ballot. Instead, afraid that he wouldn't poll enough votes, the party didn't place him on the ballot. The party did run statewide candidates for the less important offices. The Human Rights Party also would have been helped by the new law in 1976, when it did place a presidential candidate on the ballot. That candidate failed to get enough votes. The party's other candidates in 1976 got enough votes, but under the old law, that was no help.

Communist Party: would have remained on the ballot after 1972.

Libertarian Party: would have remained on after 1976, 1982, 1984, 1992 and 2000.

American Independent Party: would have stayed on after 1982.

Workers Against Concessions Party: would have remained on after 1988.

Tisch Independent Citizens Party: would have stayed on after 1992. It ran Howard Phillips for president that year, the first time it had run anyone for president. Its kindness to Phillips caused it to lose ballot status. It had been ballot-qualified since 1982.

Natural Law Party: would have remained on after 1992, 1994, 1996 and 2000.

Workers World Party: would have felt free to place its presidential candidate, Gloria LaRiva, on the 1992 ballot (instead the party submitted no presidential candidate in Michigan). Also, after the 1996 election, when the party did place a presidential candidate on the Michigan ballot, it would have remained on.

Constitution Party: would have remained on after 2000.

Still unresolved is the new law's effect on this year's election. The Constitution and Natural Law Parties will argue that they are qualified, when the new law goes into effect this month. Both parties polled enough votes in 2000 for some of their statewide candidates, but not for president.

In other states, when the law was changed, the new, easier requirements for a party to remain on were applied retrospectively, even when the bill itself was silent about that point. Those instances were California (1959), Colorado (1998), Maine (1999), Montana (1991), North Dakota (1997), and Virginia (1991). The only contrary example was Hawaii in 1999.

HB 5237 will go into effect as soon as the Governor signs it and files it. The Libertarian Party re-petitioned for 2002, so it obviously is qualified.

If state authorities rule that the new law does have retrospective effect, and that the results of the 2000 election should be applied under the new law to determine which parties are on in 2000, then the Libertarian Party's petition this year was not needed.

However, the Libertarian Party was the force behind getting HB 5237 passed, and one can argue that the legislature would not have passed the bill if the Libertarians had not re-petitioned. The Libertarian petition drive showed that the party was going to be on the ballot whether the law was changed or not. So, in that sense, the petition was not wasted effort.


These Congressmen will decide whether HR 3295 (the bill to send money to the states for new voting equipment) will also let states require Social Security numbers on voter registration forms and on petitions:

  1. Sen. Chris Dodd, Ct., 202-224-2823.
  2. Sen. Mitch McConnell, Ky., 202-224-2541.
  3. Sen. Senator Charles Schumer, N.Y., 202-224-6542.
  4. Sen. Robert Torricelli, N.J., 202-224-3224.
  5. Sen. Christopher Bond, Mo., 202-224-5721.
  6. Rep. Bob Ney, Oh., 202-225-6265.
  7. Rep. Vernon Ehlers, Mi., 202-225-3831.
  8. Rep. John Doolittle, Ca., 202-225-2511.
  9. Rep. Thomas Reynolds, N.Y., 202-225-5265.
  10. Rep. Steny Hoyer, Md., 202-225-4131.
  11. Rep. Chaka Fattah, Pa., 202-225-4001.
  12. Rep. Jim Davis, Fl., 202-225-3376.

The part of HR 3295 which authorizes the Social Security number is section 503. If you live in a state with a member of the Conference Committee, please ask him to delete section 503 of the bill. The list above includes the Capitol phone number for that member of Congress.

The existing federal Privacy Act forbids states from requiring Social Security numbers unless they were already requiring the number for that purpose before 1975. HR 3295, in the form passed by the Senate, would weaken the Privacy Act.

To see the entire bill, go to, and enter H.R. 3295 at the top of the page.

The fear that the states will start requiring petitions to include the Social Security number of each signer (if Congress permits this) is very real. Even when it was illegal for the states to require Social Security numbers on petitions, both Delaware and Kentucky did it anyway, until they were sued.


On May 24, the Arizona State Supreme Court reversed the state court of appeals and upheld Arizona's mid-June petition deadline for independent candidates. Browne v Bayless, cv-01-383. The vote was unanimous. The case had been brought in 2000 by Harry Browne, Libertarian presidential candidate. Since he lost the case in Superior Court (the only state court which rendered a decision before the election), he was not on the ballot in Arizona.

The U.S. Supreme Court had ruled in 1983 in Anderson v Celebrezze that early independent presidential petition deadlines are unconstitutional. Since then, every court (until this one) which had made a decision about the constitutionality of such a deadline (if that deadline was earlier than July 15) had invalidated the deadline.

The Arizona Supreme Court did not mention the precedents from Alaska, Kansas, Massachusetts, Nevada, Rhode Island, or South Dakota which had ruled that June (or even July, or early August) is too early. Nor did the Arizona Supreme Court acknowledge that June petition deadlines would have kept the Republican Party from getting on the ballot in the year it was formed (the Republican Party was organized on July 6, 1854). Other historically important parties which were not even formed as early as mid-June were the Progressive Party of 1912 (which ran Theodore Roosevelt for president), the Progressive candidacy of Robert La Follette in 1924, and the States Rights Democratic Party which ran Strom Thurmond for president in 1948.

The Arizona Supreme Court said the burden on voting rights caused by the deadline is "slight", even though it meant that, in 2000, Arizona voters were prohibited from voting for Browne. The Court said that the state needs time to prepare the ballot, even though Arizona doesn't hold its primary (for office other than president) until mid-September. Obviously the November ballot (the only ballot affected by independent candidates) can't be printed until after the September primary.

The Court said "the completed ballots must be translated into numerous Native American languages in order to comply with the Voting Rights Act". Obviously, placing a candidate's name on a ballot does not create much work for translators.

The Arizona Supreme Court said that since the major party presidential candidates are informally known by June, there is no unequal treatment. However, this statement was also true in 1983, the year the U.S. Supreme Court decided Anderson v Celebrezze. The U.S. Supreme Court could have said that the identity of the major party presidential candidates in generally known in June, if it felt that was an important point. But the U.S. Supreme Court did not say that. The major parties don't formally nominate their presidential candidates until July or August (or, in 2004, in September), and sometimes the identity of the vice-presidential candidate is not known until the major party national conventions. Also, the platform isn't known until the convention is held.

The Court did not mention that Arizona's independent deadline before 1993 had been in mid-September.

Browne may appeal to the U.S. Supreme Court. No decision has been made. A brief to the U.S. Supreme Court would not be due until late August. The decision is at


On May 17, the Libertarian Party sued Arkansas to force it to accept the party's petition for ballot access. The party submitted more than 10,000 signatures. Langguth v Priest, 4-02-cv-306, federal court.

The Secretary of State says that the petition needs 21,181 signatures. She won't acknowledge that the law requiring 21,181 signatures was declared unconstitutional in 1996 and again in 2001. In those lawsuits, the federal court said that since the state only requires 10,000 signatures for non-presidential independent statewide candidates, there is no good reason for it to require more than 10,000 for new parties.


The last B.A.N. said that the only national political party which had sued to overturn the new federal campaign bill was the Libertarian Party. However, since then, the Republican Party has filed a lawsuit against it: Republican National Committee v F.E.C. , 1:02-cv-874. That lawsuit includes the Republican Parties of Colorado, Ohio and New Mexico.

Also, a separate suit was filed jointly by the California Democratic and Republican Parties. It is Calif. Dem. Party v F.E.C., 02-cv-875.

Advocates of strict campaign finance controls also filed a lawsuit against the new law. Adams v F.E.C. , 02-cv-877, charges that the new higher "hard money" limits of $2,000 per individual contributor to candidates violates Equal Protection, since poor individuals cannot give that much. This lawsuit includes U.S. Public Interest Research Groups (U.S. PIRG).

Other groups suing to overturn the new law include the AFL-CIO, the Chamber of Commerce, and the National Association of Broadcasters.


On May 10, the Washington League of Women Voters endorsed proportional representation and instant run-off voting. Although the nationwide League is studying these voting systems, the Washington League is the first state League to endorse them.

The resolution says the League "Supports adoption of election methods that produce Proportional Representation when electing representative bodies such as councils, legislatures and Congress".

Also, "We support the concept of a majority vote requirement for winners of single offices such as mayor or governor, as long as it is achieved using a voting method such as the Instant Runoff Vote, rather than a second, separate runoff election."

Ironically, the Alaska League of Women Voters opposes the Instant Runoff Voting initiative on the ballot in that state on August 27.


On May 21, the Republican Party said it will hold its 2004 national convention August 30-September 2. This is the latest national convention date for a major party in history. The day before, the Democrats said they might hold their national convention at the same time.

One of the motivations for this change is that in 2004, the Olympics are being held August 13-29. Usually they are earlier.

In order for either or both major party conventions to be held this late, it will be necessary for Alabama, Alaska, the District of Columbia, Idaho, Indiana, Iowa, Montana, Utah and Virginia to change certain election laws. These 9 jurisdictions currently require parties to certify the names of their presidential and vice-presidential candidates on or before September 1. Montana has the earliest deadline, August 18.

The Republican (and possibly Democratic) late convention dates are beneficial for minor parties and independent candidates. The U.S. Supreme Court decision Anderson v Celebrezze said that states cannot require non-major party candidates to qualify earlier than the dates on which major parties choose their candidates. So, the later the major parties choose their candidates, the more time everyone else has as well.

Minor parties generally can't qualify for general election public funding, but frequently they can qualify for primary season matching funding. However, primary season money stops when the parties choose their candidates. Later convention deadlines for minor parties means more time for them to qualify for matching season primary funds.


1. Michigan: the voters will decide whether to eliminate straight-party devices on November 5, 2002.

2. Oklahoma: on May 24, the legislature passed HB 1291, which eliminates the straight-party device. The Governor is expected to sign the bill.


On April 30, the F.E.C. approved Voting System Standards. Included is section, which requires vendors selling vote-counting equipment to say whether that equipment can cope with "ranked order voting".

Since vendors of vote-counting equipment must now reveal whether their machines can handle instant runoff voting, vendors will be motivated to built equipment that can do so. Otherwise they will be at a competitive disadvantage.


On May 23, Rep. Charlie Wilson, the Assistant Minority Leader in the Ohio House of Representatives, introduced HB 586. It provides that candidates who qualify for the November ballot by petition should have "independent" printed on the ballot, next to their name.

The 6th circuit ruled in 1992 that Ohio must print "independent" on the ballot for such candidates, but in all the years since, the state has never amended its law to recognize this ruling.


Last December, the Alabama legislature passed a bill changing the petition deadline for minor party and independent candidates from July to June. Alabama is one of the states that can't change its election laws without getting permission from the U.S. Justice Department.

The U.S. Justice Department still hasn't approved the bill. It is possible that the Justice Department won't approve it. Normally, bills to make ballot access more difficult always get clearance from the Justice Department. The last time the Department refused to approve a bad ballot access change was 1966, when Mississippi tried to increase the number of signatures for a statewide independent from 1,000 to 10,000.


Californians will vote on an initiative to establish election day voter registration, probably in November.


1. California: on May 7, U.S. District Court Judge Christina Snyder dismissed the lawsuit Olivier v Jones, cv-01-9902, without ruling on the constitutional question. The issue was a law which makes it illegal for anyone to run in a partisan primary if he or she hasn't been a member of that party for the preceding three months. The judge said she wouldn't rule because the case (which had been filed by the Libertarian Party) is moot. The party had a resolution, saying any registered Libertarian could run in the 2002 primary, regardless of when he or she registered into the party. The judge said the case is moot since the primary is over and the party resolution doesn't cover future primaries.

2. District of Columbia: the last B.A.N. reported that a U.S. District Court judge had permitted the city government to spend public funds on statutes of elephants and donkeys. The Green Party had sought to block the project. The judge had ruled from the bench. B.A.N. had said the forthcoming written opinion would be interesting. However, the judge has decided not to issue an opinion.

3. Florida: on May 24, oral arguments were held in Johnson v Bush, 00-3542, in U.S. District Court in Miami. This is the case over whether Florida's disenfranchisement of ex-felons violates the U.S. Constitution. Judge Lawrence King, a Nixon appointee, peppered both sides with tough questions, but gave no hint as to how he will rule. Plaintiffs argue that the ban is racially discriminatory, since it affects 10% of all black males in the state. If the ban is not racially discriminatory, it will stand. A 1974 U.S. Supreme Court decision, Richardson v Ramirez, permits states to ban ex-felons from voting, if the ban is not motivated by racial bias.

4. Georgia: oral argument will be held on August 22 in Dickson v Secretary of State, 2000-cv-27164, Fulton Co. Superior Court. The issue is whether the 5% petition requirement (for district and county office) violates the state Constitution.

5. Kentucky: on March 21, a U.S. District Court upheld the state's ban on "electioneering" within 500 feet of the polls. Anderson v Spear, 189 F. Supp. 2d 644. Plaintiff was a write-in candidate who wanted to stand near polling places to pass out instructions on how to cast a write-in vote. He is appealing.

6. Maryland: on July 22 there will be a hearing in Boyer v Johnson in Carroll County Circuit Court. The issue is who won the Mayoral election in Mt. Airy on May 21. Only one name was on the ballot, Gerald Johnson. He received 492 votes. His write-in opponent, James Holt, appeared to receive 570 write-ins, but only 259 included his first name; the others just wrote in "Holt". The issue is whether those votes should count. Most precedents from all states agree that the voter's intent should control, and Holt and his wife were the only eligible voters named "Holt" in town.

7. Ohio: on May 22, the 6th circuit upheld Akron's ban on any campaign contribution above $300 for citywide office, or $100 for district office. Also upheld was a law that all contributors must make public their home address (as opposed to their mailing address). Frank v City of Akron, 00-3050. The vote was 2-1.

8. Texas: the U.S. Supreme Court still hasn't said whether it will hear Balderas v Texas, 01-1196. The issue is whether it is still permissible for state legislative districts to vary in population by as much as 10% from each other. The case was filed in the Court on February 12.

9. West Virginia: on May 13, the U.S. Supreme Court asked Charlotte Pritt to respond to the Republican Party's brief. Pritt, the Democratic candidate for Governor in 1996, had sued the Republican Party for "defamation" for its campaign advertising against her. The State Supreme Court ordered that a trial be held. The Republican Party asked the U.S. Supreme Court to cancel the trial. Pritt's response to the U.S. Supreme Court is due June 12. Republican National Committee v Pritt, 01-1328.


Normally, there are no minor party or independent candidates on the ballot in over 90% of state legislative elections. However, this year, there will probably be more minor party and independent candidates for the legislature on the ballot than any year since the 1930's. This is because several states which usually have few such candidates, will have them this year:

1. Alabama: this state elects all its legislators in mid-term years. No minor party had been qualified statewide in Alabama in a mid-term year since 1982, but this year the Libertarian Party is qualified. It has nominees in 25 state legislative races, out of a total of 140 such races.

2. Florida: minor party and independent candidate ballot access was almost impossible in this state, from 1931, until 1998. The rules were liberalized by a vote of the people in 1998. However, there still weren't very many such candidates in 2000. This year, however, the Libertarian Party is trying to qualify approximately 70 candidates in the 140 races. The deadline is next month.

3. Idaho: there are 30 Libertarian nominees for the 105 seats, and 8 nominees of the other minor parties. This is the highest number of minor party candidates for the state legislature since 1926. And a new party might qualify this year as well.

4. Nevada: the Independent American Party (part of the Constitution Party) has 24 nominees for the 51 legislative seats. This is the most state legislative nominees of any minor party in this state since 1980, when the Libertarians had 26.

ERRATA (from the May BAN): States which still require petition circulators to be registered voters include New York. Even though courts have struck down New York's district residency requirement for petitioners, no court has yet invalidated the law requiring them to be registered. If someone were to sue, it is clear the registration requirement would fall.

available in Adobe Acrobat .pdf format


The Reform Party national convention this year will be September 6-8. The party bylaws require a national convention each calendar year. The city hasn't been chosen.

The last B.A.N. said that the party's 2000 vice-presidential nominee, Ezola Foster, had endorsed some California candidates of the rival Constitution Party, but that she hadn't left the Reform Party. However, she did leave the Reform Party, on April 2. On that day she re-registered as a member of the Constitution Party (in California, the Constitution Party is called the American Independent Party).

B.A.N. recently learned that the Nevada unit of the Reform Party, which was called the Citizens First Party, dissolved itself in July 2001. Therefore, the Reform Party is no longer ballot-qualified in Nevada.


The America First Party, organized recently by Buchanan supporters who left the Reform Party, will have its founding convention on August 1-4 in either Orlando or Des Moines. The party is not ballot-qualified in any state, although one of its activists is chair of the Mississippi Reform Party.


The Labor Party holds its second national convention in Washington, D.C., July 25-28. The first national convention, which founded the party, was in Cleveland, Ohio, in July 1996. The party has never had any candidates in a partisan election, but it has had a few candidates in non-partisan elections. For more information, tel. (202) 234-5190, or


1. A Libertarian won a non-partisan election for city council of Hardeeville, South Carolina, on May 16.

2. The party's Illinois gubernatorial candidate this year is Cal Skinner, a former Republican state legislator.


The minor parties in New York state that frequently cross-endorse Republican and Democratic nominees are getting lots of attention, because they have the ability to affect this year's gubernatorial race. The Independence Party will hold a primary in September between Republican candidate George Pataki (who is running for re-election), and Thomas Golisano, the party's nominee in 1998 and 1994. The Independence Party has the third line on the ballot, after the Republican and Democratic Parties. Therefore, its nomination is considered valuable.

The Democratic Party won't know who its gubernatorial candidate will be until its September primary. That Democratic contest is between H. Carl McCall (currently the State Comptroller) and Andrew Cuomo (son of the former Governor). On May 19, the Working Families Party nominated McCall. On the same weekend, the Liberal Party nominated Cuomo. Once the Democratic primary is over, there are legal means by which either or both the Working Families and Liberal Parties could change their minds, and cross-endorse whomever becomes the Democratic nominee. However, McCall says he won't accept the Liberal Party nomination. Therefore, if he wins the Democratic primary, the Liberal Party may be left without a candidate for Governor. If Cuomo loses the primary, it is unlikely he would wish to continue to be the Liberal Party nominee.

A party retains its status in New York by polling 50,000 votes for Governor. The only qualified minor parties who are certain to have their own gubernatorial candidates (instead of cross-endorsing the Republican or Democrat) are the Green and Right to Life Parties.


Ed Rendell, former Mayor of Philadelphia, Pennsylvania, and this year's Democratic nominee for Governor, signed the petition to get the Green Party on the statewide ballot on May 5, according to the Philadelphia Inquirer. Rendell said, "Oh, I like Mike! Why not?" (Mike Morrill is the Green Party gubernatorial candidate).

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