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Table of Contents
OREGON COURT SAYS FIRST AMENDMENT PROTECTS A POLITICAL PARTY's CHOICE OF A NAME
On June 12, the Oregon State Court of Appeals ruled that a party's choice of name is protected by the First Amendment, and that a state must have a compelling interest in order to block a party's name. Freedom Socialist Party v Bradbury, A113583. The state hasn't decided whether to appeal.
This is the first written opinion to protect minor party names. In 1970 a Pennsylvania state court had told the state to let both the Socialist Labor Party, and the Socialist Workers Party, use their names; but no opinion was issued in that case.
There is also a 5th circuit opinion from 1975, telling Mississippi that it had to let both the National Democratic Party (a Black-led party) and the Democratic Party use their names. But that opinion has not been very influential, because most observers felt the court was influenced by the fact that the Democratic National Committee at the time did not recognize the state Democratic Party as its affiliate.
The specific Oregon law barred two different parties from using the same word in both their names. The Socialist Party is already a qualified party in a few congressional districts in the state. Therefore, the Secretary of State had refused to let the Freedom Socialist Party petition to get on the ballot in any particular legislative district. The party then brought the lawsuit, and is now free to begin petitioning anywhere in the state.
The Freedom Socialist Party has existed for 30 years, but it has never run a presidential candidate, or even any candidate for statewide office. When it contests partisan offices, it prefers to run for local and state legislative seats.
The Oregon ruling will help in a Natural Law Party lawsuit against a Kansas law, which requires that all parties have one-word names.
It will also be useful against a New York law that prohibits a party from using the words "American" or "United States" in its name.
The Oregon Court depended on a U.S. Supreme Court case from 1992 called Norman v Reed. That case presented a different issue, however. The Harold Washington Party was already a qualified party inside Chicago, and it wished to establish itself in Cook County, which includes more than just Chicago. The State Supreme Court had refused to let it petition for Cook County office on the ridiculous grounds that since it was already a qualified party in just part of the county, it was a "different" party inside Chicago than it was outside Chicago, and therefore couldn't use its name in new territory. The U.S. Supreme Court reversed the Illinois Supreme Court and let the party grow into new territory.
JUSTICE DEPT. OK's NEW ALABAMA LAW
On May 28, the U.S. Justice Department approved the new Alabama filing deadline for non-presidential independent candidates. Last year's legislature had moved it from early July, to early June. Activists had been hoping the Justice Department would refuse to approve it, since the bill passed last year and Justice Department approval was taking so long.
Also on May 28, the Secretary of State said he will put the new deadline into effect this year, even though a few weeks earlier he had said that, since the federal government was taking so long, even if they approved it, it would not take effect this year.
Two independent candidates, and also the Independent Democratic Party of Alabama, filed a federal lawsuit on June 4, charging that it violates due process to move the deadline in the middle of the election year. Swanson v State of Alabama, 02-T-644-N, middle dist.
FREE AIR TIME
On June 19, U.S. Senators John McCain (R-Ariz.), Russell Feingold (D-Wis.), and Robert Torricelli (D-N.J.), and Rep. Martin Meehan (D-Mass.), said that they will introduce a bill to provide free television time for candidates for Congress.
Any candidate who raised at least $50,000 (in donations of $200 or less) would be eligible for $100,000 in "air time vouchers". TV broadcast license holders would be required to devote at least two hours a week in the period just before elections. Half must be near prime time; none could be between midnight and 6 a.m.
The bill will also provide free TV time for political parties, but the sponsors haven't decided yet which parties will be eligible.
The idea is supported by the American Association of Retired Persons, the AFL-CIO, Common Cause, the League of Women Voters, the NAACP, the National Council of Churches, the Sierra Club, and other groups. The campaign for the bill is sponsored by the Alliance for Better Campaigns, 1150 17th St. NW, Washington DC 20036, (202) 659-1300, http://freeairtime.org.
SOCIAL SECURITY FIGHT GAINS ALLY
The fight to prevent Congress from letting states use Social Security numbers for election administration has gained a powerful new ally. The Leadership Conference on Civil Rights has written letters to all members of the HR3295 conference committee, urging the committee to delete section 503 of the bill. Section 503 overrides the Privacy Act and lets the states use S.S. numbers. If the states can use S.S. numbers for elections, they can require signers of petitions to include their numbers on those petitions. This would make petitioning much more difficult.
'TYRANNY OF THE TWO-PARTY SYSTEM'
In 1997, the Supreme Court said that because the two-party system is so helpful to the United States, states may enact election laws that discriminate in favor of the two largest parties, and against all other parties. This pronouncement, signed by six of the nine justices, is in Timmons v Twin Cities Area New Party, 520 U.S. 351. The issue in the case was whether the Constitution protects the right of two parties to jointly nominate the same candidate.
Timmons thus did double damage to minor parties. First, it permitted the states to outlaw "fusion". Worse, it seemed to approve of discrimination of all kinds against minor parties, and their candidates, and the voters who support them. The Court was only able to get away with this because the public thinks that political science teaches that the "two-party system" is needed for good government, and that the Court's understanding of "two-party system" is correct. The Court did not cite any scholarly research to bolster its claim. It did mention an affidavit by political science professor Walter Dean Burnham, and it implied that Burnham agreed with the Court. However, Burnham had filed his affidavit on behalf of the New Party, and he had said the opposite of what the Court claimed he had said.
Nothing in the Constitution says anything about the "two-party system". Therefore, the Court cannot use the concept to uphold discrimination, unless there is a public consensus among political scientists that the two-party system is not only essential, but that it is endangered unless laws discriminate against minor parties. Minor parties need help from political scientists, to show that there is no such consensus.
Last month, Columbia University Press published The Tyranny of the Two-Party System, by Lisa Disch, a political science professor at the University of Minnesota. The very existence of this book, with its bold title, will help to make it more difficult for the Supreme Court to repeat its Timmons teaching.
Professor Disch was involved in the fight to legalize fusion, so her book is largely about fusion. But it is also about how the U.S. "two-party system" (as the Supreme Court understood the term) is not natural, but is the product of election laws passed 100 years ago. "Fusion" was once legal everywhere in the U.S., but most states outlawed it 1895-1905. It is still completely unrestricted in Idaho, Mississippi, New York, South Carolina and South Dakota, and largely unrestricted in Connecticut, New Hampshire and Vermont.
"The Tyranny of the Two-Party System" argues that minor parties thrived in the U.S. in the 19th century, but have been pathetically weak during the 20th century. The paperback version of the book is only 194 pages and does not present statistics to bolster this assertion (instead, it cites to research by historian Peter Argersinger). The assertion is largely correct. During 1828-1900, minor party and independent candidates won 5.0% of regularly-scheduled elections for the U.S. House of Representatives, and 3.8% of gubernatorial elections (years before 1828 are excluded here because there were no minor parties in Congress before 1828).
By contrast, in the 20th century, minor party and independent candidates won only one-half of 1% of U.S. House races, and less than 1% of all gubernatorial races.
The book's chapters are:
1. The Politics of Electoral Fusion, 1994-1997.
2. The Politics of the Two-Party System (this chapter describes U.S. elections in the 19th century).
3. The Two-Party System: Genealogy of a Catchphrase.
4. The Two-Party System and the Ideology of Process.
5. Oppositional Democracy and the Promise of Electoral Fusion.
6. Conclusion: Against the Tyranny of the Two-Party System.
Although the thesis of the book is that the U.S. "two-party system" of the 20th century is an artificial construction of a certain type of election laws, the book only discusses laws that outlaw fusion.
In addition, of course, are discriminatory ballot access laws, discriminatory campaign finance laws, tax laws which permit for-profit corporations to sponsor exclusionary presidential debates, discriminatory ballot formats, and laws which put representatives of only the two major parties on bodies which administer elections.
All of these laws were passed after 1892. So, one wishes Disch had covered all of them, not just the anti-fusion laws. Also, her book will probably be criticized by those who argue that minor parties declined because major parties starting using primaries (thus making it easier for dissident groups to fight for their ideas inside the major parties). To rebut this probable criticism, she should have showed that minor parties were still strong in the period 1912-1926 (primaries started in 1909-1913 in most states).
Nevertheless, the book's main idea, that the Supreme Court's idea of the U.S. "two-party system" didn't even exist before the 1890's, comes through loud and clear. The paperback book is $19.50 if bought on Amazon.com.
Disch is not Alone
Disch is not the only political scientist to disagree with the U.S. Supreme Court. Two past presidents of the American Political Science Association (Robert A. Dahl and Theodore J. Lowi) have concluded that a multi-party system would be better for the U.S. And the vast majority of political scientists who prefer a two-party system do not define "two-party system" the way the U.S. Supreme Court seems to define it. Political scientists acknowledge that healthy two-party systems usually have vigorous minor parties (as in Great Britain, and 19th-century America), but the Court majority seems to think a "two-party system" is one with only two parties.
However, neither Lowi, nor Dahl, has published an entire book with a title that attacks the "two-party system". Although few judges will probably read Disch's book, many will probably hear about it, and that alone will have a useful impact.
1. California: SB 905 (a bill that previously did not refer to political parties) was amended last month to provide that only major parties may nominate by primary. Parties with registration less than 5% would nominate by convention, no later than 35 days after the major party primary. The bill passed the Assembly Elections Committee on June 25 by 4-3. The Green Party testified against it; the Libertarian Party testified in favor on condition that the bill be amended to let parties choose convention or primary. If the bill passes the Assembly, it will then be in a conference committee.
2. Indiana: Senator Richard Young, Senate Minority Leader, has agreed to co-sponsor ballot access reform next year.
3. Massachusetts: SB 2262, which passed the legislature in February, appropriates money for the public financing program, but it also directs that the voters vote in November on whether to repeal the program or not.
4. Michigan: as hoped, Governor John Engler signed HB 5237 on May 30. This is the bill to make it easier for minor parties to remain on. The Secretary of State still hasn't decided whether the new law means that the Constitution and Natural Law Parties are now on the ballot.
5. Ohio: on June 19, the Senate State & Local Government Committee amended HB 445, to provide that candidates who get on the November ballot by petition may have "independent" next to their names, if they wish. Current law doesn't permit any label, although that law was held unconstitutional in 1992. At the hearing, representatives of the Libertarian and Natural Law Parties, and of COFOE, made the case for expanding the bill to include not just "independent", but any short partisan label that doesn't mimic the name of a qualified party. Most committee members expressed a willingness to examine this idea next year.
6. Oklahoma: in a surprise, Governor Frank Keating vetoed HB 1291, which would have eliminated the straight-ticket device.
7. South Carolina: the legislature adjourned on June 6. No bill affecting minor parties passed. Two of the bills were restrictive (to outlaw fusion, and to impose filing fees on convention nominees), and one of them expanded voting rights (to permit write-ins for president).
8. Tennessee: HB 3034, which would have made it more difficult for a write-in candidate to be nominated in a partisan primary, was defeated in the House State & Local Government Committee on June 19. An identical bill, SB 2776, had already passed the Senate, but is now considered dead.
9. Washington: the House State Government Committee held a hearing on Instant Runoff Voting on June 17. Many citizens spoke in favor. The only opponent was one county elections official. This was a general hearing on this particular subject; no bills can be dealt with until next year.
Fixing Elections, the Failure of America's Winner Take All Politics, by Steven Hill. Hardcover, 343 p. Routledge. $19.25 from Amazon.com.
As the pamphlet Common Sense was to the American revolution, so Fixing Elections could be (if enough people read it) to the movement for alternative voting systems in our day. Fixing Elections is not so much about the virtues of proportional representation or instant-runoff voting, as it is a scathing indictment of the system now in place in the U.S. All the problems of elections and representation in the United States are covered.
Especially compelling are the chapters about why so many major party candidates seem so phony. The book tells the details, especially about major party presidential candidates, setting up focus groups and dial-meter groups, to pre-test the speeches and campaign advertisements. The book also publicizes research which shows that major party nominees tailor their messages to what the target audience wants to hear, and then they follow different policies once in office.
The book describes redistricting, and shows that the voters in 1998 and 2000 actually had more impact on which major party will win seats in congress and state legislatures in 2002, then the voters in 2002 will have! This is because computer technology has made the drawing of district lines so sophisticated, that the major party in control of the process can determine most outcomes. The voters in 1998 and 2000 were deciding which major party would control state legislatures. The decisions of those past voters therefore determined which major party was in power to draw the lines in 2001 and 2002.
Fixing Elections documents the extent to which mass media is owned by a small number of corporations, and shows how those corporations self-consciously discriminate against non-major party candidates, not only in news coverage, but even when selling advertising space or time.
The second half of the book explains why the "winner-take-all" system is responsible for these, and many other, problems. It also presents political science research showing that the fit between public opinion, and public policy, is better in nations which use proportional representation, than in the U.S.
The author does not soft-pedal his own political preferences on a wide range of issues, and some potential readers of the book won't agree with those preferences. The author is too dismissive of the role of state governments in the federal system. At one point he even refers to the "artificial created geographic entities called 'states'". However, the book manages to introduce sophisticated new ideas about voting systems in a very readable, even compelling, style. Furthermore, it's a handy reference to other books and studies. It deserves the widest readership possible.
THE ULTIMATE LOW TURNOUT ELECTION
On June 11, Arkansas held a run-off Democratic primary for State Land Commissioner. No other office was on the ballot. In at least two precincts in the state, not a single voter turned out to vote.
FREE SPEECH VICTORY
On June 27, the U.S. Supreme Court ruled that states cannot disbar attorneys who, while running for judge, "announce their views on disputed legal or political issues". Republican Party of Minnesota v White, 01-521. The vote was 5-4. The same judges who voted for George Bush in Bush v Gore voted to strike down the restriction; the same judges who voted for Al Gore voted to uphold the restriction.
Minnesota and many other states hold elections for State Supreme Court Justices and for lower judicial posts. Regulations enforced by these states subject judges who violate the "announce" rule to removal; candidates who are not yet judges can be prohibited from working as attorneys.
The decision was written by Justice Antonin Scalia. It points out that if candidates do announce their view on disputed legal or political issues, their opponents, or good-government groups, or the State Bar Association, or newspapers, are all free to point out that the candidate is not displaying proper judicial deportment. But it holds that the state interest in restricting speech is not compelling, and therefore the restriction cannot stand.
Justice Anthony Kennedy wrote separately to say "direct restrictions on the content of candidate speech are simply beyond the power of government to impose."
Justice Sandra O'Connor also joined the majority, but wrote separately to express her opinion that judicial elections are bad policy.
WEST VIRGINIA HOPE
West Virginia requires that all petition circulators (for minor party and independent candidates) must obtain credentials, before they begin to petition. "Credentials" consist of a credit card-sized card, prepared by a county clerk, bearing the petitioner's picture. On June 17, the U.S. Supreme Court released an opinion which might help to overturn that West Virginia restriction. Watchtower Bible & Tract Society v Village of Stratton, 00-1737.
Stratton, Ohio, had an ordinance requiring anyone who "canvasses" to "promote a cause" by going door-to-door, to first file a form with the Mayor's office. The Mayor could not refuse to accept the form. The Jehovah's Witness won its case against this law, by a vote of 8-1.
The Stratton decision is by Justice John Paul Stevens. His decision was based partly on precedents that protect some anonymous campaign speech, and partly on the fact that the ordinance delays "spontaneous speech". He said, "A person who made a decision on a holiday or a weekend to take an active part in a political campaign could not begin to pass out handbills until after he or she obtained the required permit." This language strengthens any potential future lawsuit against the West Virginia petitioning restriction.
MORE LAWSUIT NEWS
1. Arizona: on June 17, the State Court of Appeals ruled that public funding of campaigns cannot be financed, in part, by a surcharge on traffic and other criminal fines. May v Bayless, 02-0073, Phoenix. The opinion says, "There is a significant distinction between funding a political campaign through a general tax and funding it through a surcharge...the surcharge is not taken from existing government funds; instead it is an additional charge imposed on a limited group of individuals."
2. California: on May 9, the state settled the federal lawsuit Common Cause v Jones, 01-3470, Los Angeles. The state will replace punchcard voting machines before the 2004 primary. Because the case was settled, there is no actual opinion.
3. Michigan: on June 12, the 6th circuit upheld a state law providing that Detroit voters may no longer elect their School Board. Moore v Detroit School Reform Board, 00-2334.
4. Nevada: on May 22, a lawsuit was filed in federal court, challenging the use of alphabetical order to put candidates on ballots. Schaefer v Lomax, cv-S-02-662, Las Vegas.
5. New York: on April 5, a U.S. District Court struck down ordinances in 7 towns which restricted campaign signs (requiring permits, limiting their size, limiting when they could be posted). Sugarman v Village of Chester, 192 F.Supp.2d 282 (s.d.).
New York (2): on June 21, the State Supreme Court ruled that candidates may not appear on the primary ballot of a party (other than their own party) unless at least 50% of delegates to a party convention authorize the race. Another state law says that candidates with at least 25% support at the convention may run in that party's primary, but the Court held that the 25% law doesn't apply to candidates who aren't members of that party. Independence Party State Committee v State Bd. of Elections, 3577-02, Albany. The decision was a victory for the Independence Party, which did not want two particular candidates (one Democrat, one Conservative) running in its primary.
6. Ohio: Ralph Nader filed his appeal with the U.S. Supreme Court on June 27. Nader v Blackwell, number not assigned yet. The issue is partisan labels for candidates who qualify for the November ballot by petition. Nader had won in U.S. District Court but lost in the 6th circuit.
7. Texas: on June 24, the U.S. Supreme Court refused to hear Balderas v Texas, 01-1196. The issue was whether it is still permissible for state legislative districts to vary in population by as much as 10% from each other.
8. Utah: on June 20, the U.S. Supreme Court upheld the Census Bureau's population figures for Utah and North Carolina, relative to how many U.S. House seats each state should have. The vote was 6-3. Utah v Evans, 01-714.
On June 4, voters in Long Beach, California, elected Beverly O'Neill Mayor, even though her name wasn't on the ballot. The vote was O'Neill 19,135; Dan Baker (the only candidate on the ballot) 15,173; Norm Ryan (another write-in candidate) 6,995. O'Neill wasn't on the ballot because of the city's term limits law.
PETITIONING FOR STATEWIDE OFFICE
available in Adobe Acrobat .pdf format
On June 26, the Reform Party announced that its national convention this year will be in Denver. The dates, previously announced, are September 6-8.
AMERICA FIRST PARTY
The America First Party, organized recently by Buchanan supporters who left the Reform Party, doesn't have any statewide candidates this year, but it has already placed a candidate for the U.S. House on the ballot in New Jersey, and for state legislature in Tennessee and Iowa. Its founding convention will be in Orlando, August 1-4.
The Green Party's candidate for Governor of Maine, Jonathan Carter, will receive approximately $900,000 for his campaign, in accordance with the state's public financing program. However, the party's candidate for Governor of Massachusetts, Jill Stein, failed to qualify for $3,400,000. She needed donations (of between $5 and $100) from at least 6,000 voters. Although she submitted evidence that she had received donations from 6,450 voters, the state disqualified approximately 1,000.
1. A Libertarian, Bill Woolsey, won a non-partisan election for town council of James Island, South Carolina, on June 18. This was the second Libertarian to be elected to a municipal council in this state in the last two months.
2. The Libertarian Party's candidate for Lieutenant Governor of Wisconsin this year will be Marty Reynolds, who is now a Democratic legislator. He has been in the Assembly for six terms, and he is also Mayor of Ladysmith, in the northwest corner of the state. In Wisconsin, nominees for Governor and Lieutenant Governor run as a team. Reynolds is teamed with Ed Thompson, Mayor of Tomah and the brother of former Governor Tommy Thompson.
The Constitution Party has only had one state legislator in its history. He was Rick Jore, of Montana, who switched his membership from "Republican" to "Constitution" in February 2000 while he was in the State House of Representatives. As a Constitution Party candidate in November 2000, he was narrowly defeated in a two-way race with a Democrat. This year, he is running for his old seat. He will be facing a Democrat and a Republican.
PEACE & FREEDOM PARTY
On June 13, two members of the Peace & Freedom Party were elected to the Venice, California Neighborhood Council. They are Yolanda Miranda and Alice Stek.
UNITED CITIZENS PARTY
The United Citizens Party of South Carolina, which has been ballot-qualified since 1972, and which is predominantly led by African-Americans, has cross-endorsed seven Democratic legislators who are running for re-election. They will appear on the November ballot in both the Democratic column and the United Citizens column, and voters will be able to vote for them under either party label.
VIRGINIA SPEAKER IS INDEPENDENT
The interim Speaker of the House of Delegates is Lacey Putney, one of the nation's independent state legislators. He replaces a Republican who resigned his seat in a sex scandal.
INITIATIVE & REFERENDUM INSTITUTE
The Initiative and Referendum Institute, which exists to defend the initiative process, is moving as of July 31 from Washington, D.C., to this address: P.O. Box 6306, Leesburg, Va 20178. The phone will be (703) 723-9621. See www.iandrinstitute.org.