"TOP TWO" SYSTEM QUALFIES FOR CALIF. BALLOT
WOULD REMOVE MINOR PARTY MEMBERS FROM NOVEMBER BALLOT

On March 8, supporters of the "top two" election system submitted 900,000 signatures to the California Secretary of State. Since 598,105 valid signatures are needed for an initiative to change the state Constitution, it is certain that the question will appear on the November 2004 ballot.

Proponents hired the leading paid petition companies in the state to obtain their signatures. According to eyewitnesses, circulators told potential signers, "This initiative lets voters vote for anyone they wish in the primary election." Circulators never told potential signers that the initiative would give Californians fewer choices on their November ballots, than the voters of any other state.

The initiative would provide for a single primary ballot in March, upon which all candidates for all congressional and state office would appear. All voters would receive that ballot. Then, only the top two vote-getters would appear on the November ballot. Even if one candidate received 80% or even 100% of the vote in March, an election would be held in November.

Ostensibly, this system is fair and equal for all candidates. But when one examines past primary election returns in California that used this type of ballot, one finds that, out of 408 examples, only Democrats and Republicans ever placed first or second (except in the 12 obvious cases when only one major party member was running). The examples are from all primaries held in 1998 and 2000, and all special elections held since 1967. This evidence shows that the proposal would result in a November ballot with only Democrats and Republicans running.

Proponents received funding to place their initiative on the ballot from large corporations and very wealthy individuals.

Countrywide Home Loans, the third largest home lender in the U.S., gave $350,000. Charles Munger, head of Wesco Financial, gave $200,000. The Association of California School Administrators, Netflix CEO Reed Hastings, Elizabeth Rogers, Otis Booth, Stewart Resnick, Jerry Perenchio, and Richard Riordan, each gave $100,000. Eli Broad, Haim Saban, Robert Day, Donald Fisher each gave $50,000.

The motivation for the "top two" initiative is that business interests have been irritated with the California legislature. Important tax and budget proposals cannot pass without a two-thirds vote. Enough Republican legislators have a rigid ideological stance against new taxes, and enough Democratic legislators have an equally rigid stance against cutting health and welfare benefits for poor people, that it is difficult for the legislature to establish policy. Proponents believe that their election system would bring about the defeat of these "extreme" legislators.

In addition, some conservative Democrats support the initiative because they wish to eliminate the Green Party from the general election ballot. The most prominent Democrat supporting the initiative, Controller Steve Westly, tipped his hand when he told a reporter that the initiative would end the "spoiler problem."

Supporters of the initiative have resorted to deceptive tactics. The term "open primary" is already well defined in political science and legal writing. An "open primary" is one in which a voter who appears at the polls on primary day is free to decide which party’s ballot to choose. But, in an "open primary," each party does have its own ballot. The primary voter, having chosen one party’s primary, cannot simultaneously vote for members of other parties.

Notwithstanding the consensus about the definition of "open primary," proponents of the initiative have cynically labeled their idea an "open primary," because the term sounds appealing. In Washington state, where the idea also has support, the press is using the term "top two" for this kind of election system. Unfortunately, the press in California is more gullible, and refers to the proposal as "the open primary."

Proponents say that their proposal will result in more "moderate" elected officials. They claim that "moderate Republicans" are an endangered species in California. Actually, moderate and liberal Republicans have been winning most of the important statewide primaries recently. Former Congressman Tom Campbell, who is pro-choice, was the Republican nominee for U.S. Senate in 2000. Bill Jones, who supported U.S. Senator John McCain over Governor George W. Bush for the Republican nomination in 2000, is the Republican U.S. Senate nominee this year. The current Republican Governor and the previous Republican Governor were both pro-choice, not pro-life. The most recent Democratic Governor, Gray Davis, was also considered a moderate, not a liberal.

When one points this out to the proponents, they say they aren’t concerned about statewide office; they are concerned about the legislature.

California already has a "semi-closed" primary. Independents may vote in the Republican and Democratic primaries for public office. Unfortunately, most Californians don’t know this. This writer served as a polling place official at the March 2004 primary in California, and all 40 independent voters who entered the polling place were surprised to learn they could choose a Republican or a Democratic primary ballot.

CAN "TOP TWO" BE DEFEATED AT THE POLLS?

Can the California voters be persuaded to vote against the "top two" plan on November 2, 2004?

In November 2003, the voters of New York city defeated an almost identical proposal for city elections. The 70% rejection rate occurred even though proponents of the idea outspent the opponents ten-to-one (Mayor Bloomberg financed the "yes" campaign). The New York city proponents labeled their idea a "non-partisan election system."

Because of the New York experiment, proponents of the California idea have been careful not to label their plan a "non-partisan" plan. And, in fact, their plan is not a non-partisan plan, for the following reasons:

If opponents can raise enough money for advertising, the message will resonate: this initiative would deprive voters of a free choice in November. Californians would be stuck with fewer choices on their November ballots, for congress and state office, than the voters of any other state. Every state has had minor party and/or independent candidates on the November ballot, for Congress, in the period 2000 to the present. Also, every state has had such candidates on the ballot for state office in the same period. Californians have had an average of 4 candidates on the November ballot, for congress, during the last decade.

Proponents cynically claim they are worried about lower voter turnout. However, voter turnout in November will be lower if the initiative passes.

The evidence is clear. The November 1992 presidential election reversed a dismal decline in voter turnout that had been unbroken since 1980. Turnout increased in 1992 because voters enjoyed having three powerful choices (Bush Sr., Clinton and Perot), all three of whom debated each other. Similarly, Minnesota’s 60% turnout in November 1998 was caused by the excitement of a genuine 3-person race (Jesse Ventura, who had only polled 3% in the September 1998 primary, won in November with 37%). No other state has had turnout of even 50% in a recent mid-year election.

If the initiative passes, congressional elections in California will be even more boring and predictable than they already are. When minor parties are on the November ballot, they can upset incumbents. For example, in California’s North Coast district in 1990, a long-entrenched Democrat (and friend of the timber industry) was defeated because a Peace & Freedom Party candidate polled 34,011 votes, causing a Republican to win. The district elected an anti-logging Democrat in 1992. The 1990 outcome would not have been possible under the "top two" system.

Under the "top two" system, no one can possibly appear on the November ballot unless that person filed a declaration of candidacy a year before the election. That characteristic shuts out any late entries into the race, even though public events may occur during the election year that demand new entries. Under existing California law, an independent candidate for Congress may qualify in August of the election year. The existing law is therefore more flexible. Unfortunately, California’s existing law for independent candidates is too harsh and ought to be eased.

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IRV WINS IN BERKELEY

On March 2, the voters of Berkeley, California passed a ballot measure to let the city council implement Instant-Runoff Voting. The margin was 72%. However, the county elections officials who run elections for the city say they will not comply.

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WASHINGTON TO EASE STATEWIDE ACCESS?

On April 3, Governor Gary Locke, a Democrat, will decide what type of election system his state will use this year. The legislature sent him two distinctly different proposals, a classic "open primary" system used by 20 other states, and the "top two" system similar to the California initiative discussed in the preceding articles.

Both plans are contained in the same bill, SB 6453. The "top two" is in the first half of the bill, and the classic open primary is in the second half. Washington’s Constitution gives Governors the right to veto just part of a bill. If Governor Locke likes the open primary (and he has said that he does), he will probably veto the top half of the bill and let the bottom half take effect.

If he does let the open primary go into law, ballot access for statewide minor party nominees will be much easier. The bill requires 1,000 signatures for such candidates, and puts them directly on the November ballot. The old law only required 200 signatures, but put them on the blanket primary, where they had to poll 1% to qualify for the November ballot. All minor party candidates for Governor and U.S. Senator always failed the vote test, except for Libertarian nominees in 2000. All nominees (for those two offices) of the Reform, Patriot, Populist, Socialist Workers, and U.S. Taxpayers Parties always failed to get 1%, as did some Libertarian nominees.

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PETITIONING IN PARKS

Federal courts recently made it easier for circulators to work in public parks. In Galvin v Hay, 00-17425, the 9^th circuit said park officials must allow the entire park to be used for First Amendment activity, instead of fencing off a "free speech" zone. In Yeakle v City of Portland, 02-1447-HA, a U.S. District Court Judge struck down a city ordinance that barred people from a park for 30 days if they violated any park regulation. The plaintiff was a professional petition circulator.

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GEORGIA GAIN

On March 25, a federal court redrew the state’s legislative districts. In response, the Secretary of State asked the judges to lower the number of signatures needed for a minor party or independent candidate for the legislature to get on the ballot (for this year only). The Secretary of State knew that if she didn’t ask for this relief, the minor parties would sue her. A hearing on her motion will be held April 5.

The Secretary of State asked that the number of signatures be reduced by one-third, since the normal petitioning period runs from mid-January thru mid-July, yet petitioning was impossible before March 25. At the hearing on April 5, minor parties are expected to ask that the reduction be closer to 40% off. The Secretary of State also asked the judges to order that minor parties have until mid-July to choose their nominees. Current law requires the nominations to be made by mid-June.

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MORE LAWSUIT NEWS

Delaware: on March 19, the 3^rd circuit upheld a mandatory filing fee of $3,000 for U.S. House (for all major party candidates who aren’t paupers). Biener v Calio, 03-1607.

Florida: Congressman Wexler has won the right to a trial, in his federal lawsuit against electronic vote-counting machines with no audit trail. Wexler v LePore, 04-80216, Fort Lauderdale. It will be in August.

Indiana: on March 15, the 7^th circuit upheld a state law mandating that political advertising expressly advocating the election or defeat of a clearly identified candidate, must show who paid for the printing. Majors v Abell, 02-2204. The law doesn’t apply unless at least 100 copies of the ad are printed.

Maryland: on March 24, the Libertarian Party settled its lawsuit over whether signatures should be counted if they include the month and day, but not the year, of signing. Most of the signatures will be counted. Libertarian Party of Md. v State Bd. Of Elections, 02-c-03-93828, Annapolis.

Maryland (2): the highest State Court will hold a hearing on April 2 in Suessmann v Lamone, 140 Sept. 03 term. State law says that candidates for lower court judges should be nominated at major party primaries. The winners of those primaries appear on the November ballot. Such candidates may also be nominated for the November ballot by petition. The lawsuit was filed by an independent voter (independent voters can’t vote in partisan primaries in Maryland). He argues that, since the judicial elections seem non-partisan, he has a right to vote in those judicial primaries. The elections seem non-partisan because: (1) no party labels appear on the ballot; (2) judicial candidates may not campaign as partisan candidates; (3) judges can file in both major party primaries.

Minnesota: on March 16, the 8^th circuit ordered a lower court to hold a trial, on the validity of a state law that makes it illegal for a candidate for Judge to speak at a political party meeting. Republican Party of Minnesota v White, 99-4021.

New York: on March 18, a City Court Judge filed a lawsuit, challenging the way State Supreme Court Justices are nominated. Lopez Torres v Bd. Of Elections, 04-1129, U.S. District Court, Brooklyn. Voters elect delegates to party nominating conventions, but ballot access to run for delegate is very difficult. The suit asks either easier ballot access for delegate, or direct primary nomination of judges.

North Carolina: on March 31, a hearing was held in DeLaney v Bd. Of Elections, 1:02-cv-741. The issue is whether a state can require more signatures for statewide independents than for minor parties. The next B.A.N. will carry a report.

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ACCESS BILLS ADVANCE

Bills to help minor parties have cleared committees in two states. In Tennessee, SB 3233 would allow partisan labels for independent candidates. In Connecticut, bill 123 would let parties remain on the ballot for all partisan office if they get 2% for Governor.

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NEW LAWSUITS

Minor party and independent candidates are about to file several new lawsuits. The Libertarian Party is about to sue Oklahoma in state court over the ballot access requirements for new parties. Independent candidates for Congress will sue Idaho and Ohio over their March petition deadline for independent candidates.

The Illinois Green Party will sue to overturn a law requiring new parties to run a full slate of candidates. The North Carolina Green Party will sue over wording on the party petition that says all signers are "organizing" the party. The Constitution Party will sue Michigan over that state’s refusal to let it change its name.

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SAN FRANCISCO GREEN BALLOT FIGHT

The Green Party has a higher share of voter registration in San Francisco’s 8^th congressional district than any other district in the nation, except for the district in next-door Oakland. However, it is having a tough struggle to place its congressional nominee on the general election ballot.

The candidate, Terry Baum, could not be listed on the party’s primary ballot, because she had been registered as a Democrat in early 2003. But state law permitted her to get the party’s nomination by write-in votes. However, she had to get at least 1,605 write-ins (1% of the vote for that office in the last general election). She got 1,675. Unfortunately, 244 of those voters didn’t realize they were not only supposed to write her in, but to "x" the box next to the write-in line. Elections officials won’t recognize those votes, so she will sue, arguing that voter intent controls.

An identical lawsuit on this issue was won in Washington state in December 2003. It was In re Election of Medina City Council, superior court, King Co., 03-2-41552-9. Favorable precedents were also issued some years ago in the State Supreme Courts of Arkansas, Tennessee, Wyoming, Ohio and West Virginia.

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MARCH DEMOCRATIC PRESIDENTIAL PRIMARIES

	Kerry	Edwards	Dean	Clark	Sharpton	Liebermn	Kucinich	Gephardt	Braun	LaRouche
Calif.	1975,043	606,224	129,063	50,455	58,454	52,078	143,162	21,613	24,087	7,846
Conn.	75,860	30,844	5,166	1,546	3,309	6,705	4,133	- -	- -	1,467
Florida	581,544	75,679	20,828	10,224	21,025	14,286	17,193	6,021	6,788	- -
Georgia	289,828	256,198	11,173	4,183	38,728	5,570	7,619	2,321	3,713	- -
Illinois	868,932	131,795	47,090	19,191	35,876	23,230	27,957	- -	52,873	3,843
Louisiana	112,639	26,074	7,948	7,091	- -	- -	2,411	- -	- -	2,329
Maryland	286,955	123,006	12,461	4,230	21,810	5,245	8,693	2,146	2,809	1,555
Mass.	440,964	10,851	17,076	3,109	6,123	5,432	25,198	1,455	1,019	970
Miss.	58,927	5,562	1,955	1,884	3,865	764	773	29	- -	249
N.Y.	407,643	136,232	18,815	3,615	54,765	8,756	36,224	4,820	- -	2,938
Ohio	617,945	407,386	30,186	12,285	- -	14,298	107,391	- -	- -	3,908
R.I.	25,466	6,635	1,425	237	- -	303	1,054	- -	- -	63
Texas	556,569	118,937	39,608	18,158	30,930	25,038	15,891	12,148	- -	6,854
Vt.	26,171	5,113	44,393	2,749	- -	- -	3,396	- -	- -	386
TOTAL	6282,273	1926,556	384,192	137,828	273,718	160,598	395,663	50,255	90,629	32,222

The John Edwards votes in Vermont are write-ins. Edwards didn’t file to be on the Vermont ballot because he presumed that it would be impossible to defeat John Dean there.

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MARCH GREEN PRESIDENTIAL PRIMARIES

-	Camejo	Cobb	Salzman	Mesplay	Glover
California	33,255	5,002	4,680	883	- -
Massachusetts	- -	198	217	60	78
Rhode Island	- -	71	- -	18	- -
TOTAL	33,255	5,271	4,897	961	78

Massachusetts also tallied 39 write-ins for Ralph Nader in the Green primary, and 236 votes for "no candidate."

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MARCH LIBERTARIAN PRESIDENTIAL PRIMARIES

-	Nolan	Russo	Badnarik	Diket	Hollist	misc. write-in
California	11,677	4,761	3,266	- -	- -	??
Massachusetts	292	106	82	68	52	214
TOTAL	11,969	4,867	3,348	68	52	-

The March 1 B.A.N. carried Libertarian February primaries, and showed that Badnarik had narrowly defeated Nolan in Wisconsin. However, those were unofficial returns. The official returns show that Nolan won with 1,490, to Badnarik’s 1,414, and 401 "uninstructed" (this correction has been made to the online edition).

REPUBLICAN PRESIDENTIAL PRIMARIES: President Bush polled 2,184,828 in California; 159,006 in Georgia; 69,205 in Louisiana; 151,943 in Maryland; 62,773 in Massachusetts; 778,033 in Ohio; 2,152 in Rhode Island; 634,439 in Texas; and 25,415 in Vermont. His only ballot-listed opponent in any Republican presidential primary during March was Bill Wyatt, who polled 2,805 in Louisiana. Massachusetts and Texas let voters choose "no preference"; that choice received 6,050 in Massachusetts and 51,627 in Texas.

CONSTITUTION PRESIDENTIAL PRIMARY: Michael Peroutka was unopposed in California, and he received 25,950 votes.

PEACE & FREEDOM PRESIDENTIAL PRIMARY: (in California) Leonard Peltier 2,767; Walt Brown 1,914. Walt Brown is the Socialist Party nominee.

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2004 PETITIONING FOR PRESIDENT

STATE	REQUIREMENTS		SIGNATURES COLLECTED					DEADLINE later method
-	FULL PARTY	CAND.	LIB'T	GREEN	NADER	CONSTI.	REFORM
Alabama	41,012	5,000	300	0	0	*2,000	0	Aug 31
Alaska	(reg) 6,937	#2,845	already on	already on	0	*already on	0	Aug 4
Arizona	16,348	est #10,000	already on	*0	0	0	0	Jun 9
Arkansas	10,000	1,000	*700	*230	0	50	0	Aug 2
California	(reg) 77,389	153,035	already on	already on	can’t start	already on	can’t start	Aug 6
Colorado	(reg) 1,000	pay fee	already on	already on	0	already on	already on	July 5
Connecticut	no procedure	#7,500	0	already on	0	*600	0	Aug 7
Delaware	(reg) *259	5,184	already on	already on	0	already on	227	Aug 21
D.C.	no procedure	est. #3,600	can't start	already on	can't start	can't start	can't start	Aug 17
Florida	be organized	93,024	already on	already on	0	already on	already on	Sep 1
Georgia	37,153	#37,153	already on	*4,200	500	0	0	July 13
Hawaii	677	3,711	already on	already on	0	*finished	0	Sep 3
Idaho	10,033	5,017	already on	*3,000	0	already on	0	Aug 31
Illinois	no procedure	#25,000	*800	*100	0	*0	*0	Jun 21
Indiana	no procedure	#29,553	already on	0	1,000	0	0	Jul 1
Iowa	no procedure	#1,500	425	0	0	25	0	Aug 13
Kansas	16,714	5,000	already on	*0	0	*4,200	already on	Aug 2
Kentucky	no procedure	#5,000	0	0	0	*200	0	Aug 26
Louisiana	est. (reg) 140,000	pay fee	1,369	855	0	39	2,900	Sep 7
Maine	25,260	#4,000	0	already on	0	0	0	Aug 9
Maryland	10,000	*27,899	*finished	already on	0	finished	0	Aug 2
Mass.	est. (reg) 38,000	#10,000	already on	already on	0	33	1,469	July 27
Michigan	31,776	31,776	already on	already on	0	already on	already on	July 15
Minnesota	112,557	#2,000	0	already on	can’t start	0	0	Sep 14
Mississippi	be organized	#1,000	already on	already on	0	already on	already on	Sep 3
Missouri	10,000	10,000	already on	0	0	0	0	July 26
Montana	5,000	#5,000	already on	already on	0	*already on	already on	July 28
Nebraska	4,810	2,500	already on	*4,550	0	0	0	Aug 24
Nevada	4,805	4,805	already on	already on	0	already on	0	July 9
New Hamp.	13,260	#3,000	0	0	0	finished	0	Aug 11
New Jersey	no procedure	#800	0	0	0	*25	0	July 26
New Mexico	2,422	14,527	already on	already on	0	*2,300	0	Sep 7
New York	no procedure	#15,000	can't start	can't start	can't start	can't start	can't start	Aug 17
No. Carolina	58,842	*100,532	already on	9,100	1,500	100	0	*Jul 6
North Dakota	7,000	#4,000	0	0	0	0	0	Sep 3
Ohio	32,290	5,000	in court	0	0	*4,800	0	Aug 19
Oklahoma	51,781	37,027	*11,000	0	800	0	0	Jul 15
Oregon	18,864	15,306	already on	already on	0	already on	0	Aug 24
Penn.	no procedure	*25,697	0	*2,000	0	0	0	Aug 2
Rhode Island	16,592	#1,000	0	already on	0	0	0	Sep 3
So. Carolina	10,000	10,000	already on	*already on	0	already on	already on	Jul 15
South Dakota	8,364	#3,346	*7,000	0	0	*already on	0	Aug 3
Tennessee	41,322	25	0	0	0	0	0	Aug 19
Texas	45,540	64,077	*7,700	*800	2,000	*0	0	May 24
Utah	2,000	#1,000	already on	already on	0	already on	0	Sep 3
Vermont	be organized	#1,000	already on	already on	0	already on	0	Sep 16
Virginia	no procedure	#10,000	*5,000	0	0	0	0	Aug 20
Washington	no procedure	*#1,000	already on	can't start	can't start	can't start	can't start	Aug 25
West Va.	no procedure	#12,963	*3,000	0	0	0	0	Aug 2
Wisconsin	10,000	#2,000	already on	already on	can’t start	already on	can't start	Sep 14
Wyoming	3,644	3,644	already on	0	0	0	0	Aug 17
TOTAL STATES ON			27	23	0	*16	7	-

# allows partisan label.
* entry changed since last B.A.N.
"(reg.)" means a party must have a certain number of registered voters.
Prohibition Party is on in Colorado. Socialist Party has 900 signatures in New Jersey. American Party has started in a few states.

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PRESIDENTIAL NOMINATIONS

Various ballot-qualified parties that exist in a single state are making early nominations for president.

Alaska: the Alaskan Independence Party has been on the ballot since 1982, but it has never nominated anyone for president. However, on March 20, it held a state convention and nominated the Constitution Party nominees.

The Constitution Party hasn’t actually nominated for president and vice-president yet. However, it is expected that the party will choose Michael Peroutka for president, and Chuck Baldwin for vice-president. The Alaskan Independence Party will certify whatever candidates the Constitution Party chooses. The Alaskan Independence Party was formed to work in favor of secession from the United States, but nowadays the party rarely talks about that issue.

Chuck Baldwin is a minister and radio talk show host in Pensacola, Florida. For more information, see politics1.com, under "P2004."

South Carolina: on March 6, the United Citizens Party of South Carolina nominated Walt Brown, the Socialist Party nominee, for president. The United Citizens Party is primarily an African-American party. It has only twice before nominated anyone for president. It cross-endorsed George McGovern (the Democratic nominee) in 1972. McGovern only polled 2,265 votes on its ticket in 1972. And in 2000, it nominated Ralph Nader, and polled 20,729 votes.

Walt Brown will be the first presidential candidate of any party with "socialist" in its name, to appear on a government-printed ballot in South Carolina. South Carolina didn’t use government-printed ballots until 1950. Before then, voters could prepare their own ballots, but most voters used a ballot that had been printed by that voter’s favorite political party. The Socialist Party received votes for president in South Carolina in all presidential elections 1904-1932, but those votes were received on privately printed ballots. The Communist Party never even distributed private ballots in South Carolina.

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PROHIBITION PARTY

Many activists in the Prohibition Party have rejected the legitimacy of the party’s national nominating convention of June 2003, and recently made separate nominations for president and vice-president. The June 2003 convention was held at a private residence, with fewer than ten persons present, most of them members of the same family.

The new ticket is Gene Amondson of Alaska for president, and Leroy Pletten of Michigan for vice-president. They have not yet begun getting on the ballot anywhere. The original ticket is already on in Colorado.

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LYNDON LaROUCHE

Lyndon LaRouche has been running in Democratic presidential primaries ever since 1980. This year his vote totals are lower than ever before. So far he has only won 37,852 votes, although thirteen primaries haven’t been held yet. LaRouche received these national totals in Democratic presidential primaries in the past: 1980 177,784; 1984 123,649; 1988 70,938; 1992 154,599; 1996 596,422; 2000 323,014.

The LaRouche organization still manages to win some victories, however. Last month four LaRouche supporters won seats on the Alameda County, California Democratic County Central Committee, a body with a total membership of 30.

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NADER CAMPAIGN LAWSUIT WIN

On March 8, Ralph Nader won a lawsuit related to campaign advertising in U.S. District Court. Judge George Daniels of Manhatten rejected Mastercard’s lawsuit against Nader, over a Nader TV ad in 2000. Mastercard International v Nader, 00civ-6068. The Nader ad had parodied the famous Mastercard "Priceless" advertisements. Mastercard had then sued Nader, alleging copyright infringement. However, the judge ruled that the copyright laws were never intended to suppress political parody.

Ballot Access News. is published by and copyright by Richard Winger. Note: subscriptions are available!