Ballot Access News -- September 1, 2004

THREE WINS, THREE LOSSES, IN BALLOT ACCESS CASES

BALLOT ACCESS CASES STILL PENDING IN ELEVEN STATES

During the last thirty days, minor party and independent candidates have won three lawsuits, and lost three. More decisions are expected on an almost daily basis during the first half of September.

Winning Cases

Alaska: on August 13, a state court put the Republican Moderate Party back on the ballot. Metcalfe v State, 3AN-04-8804.

Alaska law defines "party" as a group that polled 3%, or which has registration membership of at least 3% of the last vote cast. However, independent candidates, and candidates of unqualified parties, need a petition of 1% of the last vote cast.

The decision says, "Why, then, should qualified parties be required to show 3% support? It is the Defendants’ burden to justify this discrepancy, yet the only explanation offered by the Defendants is that the designation of "political party" carries additional ramifications besides the right to use the primary election process to nominate candidates for the general election ballot. This much is true, but without a greater showing this argument does not further the Defendants’ position…Defendants have not articulated why the standard for affiliated candidates to appear on the ballot must be higher than the standard for unaffiliated candidates."

This is only the second time any court has said that requirements for political parties cannot exceed the requirements for independent candidates. The first was a federal court in Arkansas in 1996.

The Alaska decision granted an injunction for the Republican Moderate Party, but did not decide the issue of the law’s constitutionality. Also, the injunction merely put the party back on the November ballot, not the primary.

North Carolina: on July 26, a U.S. District Court ruled that the state may not require more signatures for an independent candidate, than for a new party. DeLaney v Bartlett, 1:02-cv-741, m.d. DeLaney had filed this case in 2002, when he wanted to be an independent candidate for U.S. Senate.

North Carolina has been requiring 100,533 signatures for an independent, but 58,842 for a new party.

The decision was not surprising. Courts in Alabama, Florida, South Carolina, and Missouri, had also ruled that states may not require independent candidates to comply with more difficult requirements than new parties. A U.S. District Court decision in 1980 in North Carolina had also set forth this principle, but the legislature had ignored it. The DeLaney precedent should help Ralph Nader with his pending lawsuit against Texas.

Oklahoma: on August 13, the State Supreme Court put an independent candidate on the ballot for Congress in the 4^th district. Bradshaw v Oklahoma State Election Board, 2004-69. State law says no one may be an independent candidate (for office other than president) unless the person has been a registered independent for the six months prior to filing. The plaintiff is a registered Republican.

The Court did not explain its reasoning. However, it is likely that the flaw in the state law is that it indirectly requires candidates for Congress to be registered voters. Probably the law would have survived if it had said that an independent candidate may not have been registered as a member of a qualified party. This is a small distinction, but a crucial one. Oklahoma is in the 10^th circuit, and the 10^th circuit had ruled in 2000 that states may not require candidates for Congress to be registered voters.

One result of the decision is that the Oklahoma legislature must revise the law next year. Since the legislature must pass a ballot access bill on this subject, perhaps other helpful provisions could be added.

Another result is that voters who are registered as members of unqualified parties will be able to run for office using the independent candidate procedures. Independent candidates (for office other than president) get on the Oklahoma ballot just by paying a fee; no petition is needed. Yet registered Libertarians, for example, were barred from running for independent candidates prior to this decision, even though the Libertarian Party isn’t itself on the ballot.

Losing Cases

California: on July 28, Terry Baum lost her ballot access lawsuit in San Francisco Superior Court. Baum v Arntz, 04-504120. On August 11, the State Appeals Court affirmed the loss without holding a hearing, and on August 26 the State Supreme Court refused the case.

Baum is the Green Party nominee in the 8^th U.S. House district. California requires a write-in candidate in a primary to poll a minimum number of votes. That minimum is the same for all parties, regardless of the size of the party. Since qualified parties in California have far fewer members than major parties do, major parties can nominate candidates by write-in at their own primaries easily, but no minor party has done so since 1968.

Baum needed 1,605 write-ins. She received over that number, but 229 of her write-ins were voided because the voter who wrote her in, did not also check the box next to the write-in line. She argued that voter intent should control. Similar cases had won in six other states’ state courts, but that seemed to count for little.

Illinois: on August 23, U.S. District Court Judge Matthew Kennelly, a Clinton appointee, refused to issue an injunction putting Nader on the ballot as an independent candidate. The issues were the June 21 deadline, and the state’s refusal to count signatures if the voter had moved since he or she had last registered to vote. Nader v Keith, 04C-4913.

Nader is appealing to the 7^th circuit. Judge Kennelly said since the ballot must be printed in September, the state needs a deadline in June. Illinois had an August deadline until 1999. The state’s argument that the August deadline made ballot preparation too difficult is a strong argument. But no evidence in the case explains why the deadline can’t be in July. Forty-six states have deadlines in July, August or September.

Ohio: on August 18, U.S. District Court Judge Susan Dlott, a Clinton appointee, refused to put a Socialist Equality Party candidate for U.S. House on the ballot. Lawrence v Blackwell, C-1-04-398, s.d. On August 27, the 6^th circuit also refused injunctive relief. The 6^th circuit judges were Boyce Martin, a Carter appointee; and R. Guy Cole and Ronald Gibbons, Clinton appointees.

The issue in the case is the validity of the March 1 petition deadline for independent candidates (for office other than president). The judge said, "If Ohio adopted the scheme that Plaintiffs propose–allowing alternative candidates to file after the primaries in order to ‘react’ to those results, alternative candidates would have a substantial advantage of major party candidates."

This conclusion is laughable. Independent candidates for U.S. House need approximately 2,000 registered voters, whereas major party candidates only need 50 signatures. Furthermore, each year Ohio gives hundreds of thousands of dollars in public funding to parties that polled 20% of the vote in the last election, but no public funding to other parties and candidates.

Still pending is a decision on the constitutionality of the deadline, which won’t be decided until next year.

DEBATES VICTORY

For sixteen years, activists have been trying to persuade the Federal Election Commission, or various courts, that the Commission on Presidential Debates is not non-partisan. Finally, on August 12, U.S. District Court Judge Henry Kennedy issued a ruling that the Commission probably isn’t non-partisan. Hagelin v FEC, civ 04-731, D.C. Kennedy is a Clinton appointee. His ruling requires the Federal Election Commission to thoroughly study the issue.

If the Commission on Presidential Debates is determined to be bi-partisan, instead of non-partisan, it could no longer receive tax-exempt donations from corporations. And then it probably would cease to exist.

Kennedy based on ruling on new evidence that came to light after the 2000 election. The Commission on Presidential Debates had pictures of the presidential and vice-presidential candidates of the Reform, Green, Natural Law and Constitution Parties, just prior to the 2000 debates. The Commission required all guards to memorize what each of these eight individuals looked like. The guards were instructed to keep them out of the audience, should they appear.

The Commission claimed that they were just trying to prevent disrupters from entering. However, the evidence showed that they made no attempt to learn the identities of any other potential disrupters.

CALIF. PRIMARY DATE

On August 26, the California legislature gave final approval to SB 1730, which moves the primary from March to June. The bill indirectly moves the deadline for qualifying a new party from October of the year before the election, to January of the election year. Assuming the bill is signed into law, Ohio will be the only state in which it is impossible for a new party to be placed on the ballot (with the party label) unless it qualifies in the year before the election. A Libertarian Party lawsuit against Ohio’s early petition for new parties is pending in federal court in Columbus.

MORE BALLOT ACCESS LAWSUITS FILED

Arizona: on August 16, Ralph Nader filed a federal lawsuit against the June 9 petition deadline, and the law forbidding out-of-state petitioners. Nader v Brewer, 04-1699-phx. The case is assigned to Judge Fredrick Martone, a Bush Jr. appointee. The hearing is September 10.

Colorado: Walt Brown, Socialist Party presidential candidate, filed a lawsuit against the July 2 deadline for an independent presidential candidate to file electors and the filing fee. Brown v Davidson, 04-cv-6907, state court in Denver. The law says the fee is due 120 days before the general election, which this year was July 5. However, July 5 was a legal holiday. Brown still got the check and the forms into the office on that day (by slipping it under the door), but the Secretary of State says he should have filed by July 2.

West Virginia: on August 6, the Libertarian Party filed a lawsuit to get its gubernatorial candidate on the ballot. McClure v Manchin, 04-c-2197, circuit court, Kanawha County. The only issue is the May petition deadline. The candidate, Simon McClure, had enough valid signatures, but they weren’t submitted on time. The hearing on August 26 went well.

LOUISIANA RE-OPENS CONGRESS FILING

On August 4, Congressman Rodney Alexander, a Louisiana Democrat, filed for re-election. On August 6, he re-filed, this time to reflect that he had just changed his voter registration from "Democrat" to "Republican." His August 6 filing was only thirty minutes before filing closed. This left the Democratic Party no time to recruit a new candidate.

On August 23, a State Court ruled that candidate filing should be re-opened for U.S. House in Alexander’s district. LaCombe v McKeithen, 61331, 18^th jud. dist. The case had been filed by Democrats, seeking to remove Alexander from the ballot. The judge found his own solution.

PRO-PARTY FORCES WIN TWO CALIF. LAWSUITS

California’s Proposition. 62 proposes that all candidates for Congress and state office compete on a single primary ballot. Then, only the top two vote-getters could appear in November. Data from past blanket primaries shows that only Democrats and Republicans would ever appear on the November ballot.

Opponents of Prop. 62 won two lawsuits recently. On July 30, the State Appeals Court ruled that a rival measure, Prop. 60, should also be on the ballot. Californians for an Open Primary v Shelley, C047231.

Prop. 60 says that if a party participates in a primary, the person who receives the most votes for any particular office in that party’s primary may appear on the November ballot. If both propositions pass, only the one with the most votes will take effect, since the two propositions contradict each other. Therefore, supporters of Prop. 62 were eager to remove Prop. 60 from the ballot.

An accidental byproduct of Prop. 60 would be to eliminate an unfair election law, section 8605. Section 8605 is responsible for the Green Party’s problems this year, trying to get its U.S. House candidate in San Francisco on the November ballot. It requires write-in winners to receive a number of write-ins, equal to 1% of the vote cast for that office at the last general election. This law has prevented minor parties from nominating anyone by write-in for 36 years.

In another lawsuit related to Prop. 62, a Superior Court ruled on August 9 that arguments about Prop. 62 in the State Voters’ Handbook cannot refer to the proposal as an "open primary." Vandermost v Shelley, 04cs01033. The judge said that "open primary" is now a technical term in law. It means a primary in which the voter who arrives at the polls on primary day may choose any party’s primary ballot. But, each party has its own primary ballot. Prop. 62 does not have separate primary ballots for each party, so it is not an "open primary."

ALABAMA HOPE

This year, at least three candidates were barred from a major party primary on grounds of "disloyalty" to their own party. All three of them sued, and all three lost. However, the implications may be that Alabama ballot access for minor party and independent candidates will be eased.

One of the candidates who sought a place on a major party primary ballot this year, and was denied, is Johnny Swanson. He filed in the Democratic primary for U.S. Senate this year, but the party rejected him because in 2002 he had tried to be an independent candidate.

Swanson filed a federal lawsuit against the Democratic Party this year, but lost the case on August 4. Swanson v Pitt, civ 2:04-534, Montgomery. By a lucky coincidence, that case was assigned to Judge Myron Thompson.

Judge Thompson ruled against Swanson this year on the grounds that political parties have a Freedom of Association right to exclude candidates from their own primaries if they wish. However, Thompson is also the judge who still has jurisdiction of Swanson’s 2002 case, which was filed to overturn Alabama’s 3% petition requirement for minor party and independent candidates. No decision on that case has ever been made.

Judge Thompson alluded to the pending 2002 case several times in his August 2004 decision on primary ballot access. He is aware that Swanson, and other candidates, are not permitted to run in the major party primaries, because of their past political stands. It is obvious that if certain persons are not permitted to run in major party primaries, then the door must be open for them to run as independent or minor party candidates. Judge Thompson is likely to rule that Alabama’s ballot access requirements for minor party and independent candidates are unconstitutional.

The other two candidates who were barred from primary ballots this year because of their politics are Kelly McGinley and Ginette Dow.

SPENDING CAP UPHELD

On August 24, the 2^nd circuit mostly upheld Vermont’s campaign law. Vermont is the only state that makes it illegal for a candidate to spend more than a specified amount of money, and yet doesn’t provide for public financing. (It is true that Vermont has public funding for governor and lieutenant governor, but it doesn’t have public funding for any other state offices, and the expenditure limit applies to all state offices). Landell v Sorrell, 00-9159. The vote was 2-1. The dissent is 150 pages.

9^th CIRCUIT RULING DUE

The 9^th circuit says it will decide on September 7 whether a state must deem a person to be a registered voter on the day he or she fills out a voter registration form, or whether the person isn’t validly registered until the form has been processed. The result will determine whether a marijuana law initiative gets on the Nevada ballot. Committee to Control Marijuana v Lomax, 04-16626.

U.S. HOUSE OF REPRESENTATIVES NOMINEES

	# seats	Rep.	Demo.	Lib’t.	Green	Consti.	SocWk	other(1)	other(2)	indp.
Ala	7	7	6	0	0	0	0	0	0	0
Alas	1	1	1	1	1	0	0	0	0	0
Ariz	8	8	6	8	0	0	0	0	0	0
Ark	4	4	4	0	0	0	0	0	0	1
Cal	53	51	51	24	12	2	0	5	0	0
Colo	7	7	7	1	2	3	0	0	0	0
Ct	5	5	5	0	1	0	0	0	0	0
Del	1	1	1	1	0	0	0	0	0	0
D.C.	1	1	1	0	0	0	1	0	0	0
Fla	25	20	19	2	0	1	0	0	0	0
Ga	13	11	9	0	0	0	0	0	0	0
Hi	2	2	2	1	0	0	0	0	0	0
Id	2	2	2	0	0	0	0	0	0	0
Ill	19	18	19	3	0	0	0	0	0	0
Ind	9	9	9	7	0	0	0	0	0	0
Iowa	5	5	5	2	0	0	0	0	0	1
Kan	4	4	3	4	0	0	0	1	0	0
Ky	6	6	5	1	0	1	0	0	0	0
La	7	7	6	0	0	0	0	0	0	0
Maine	2	2	2	0	0	0	0	1	0	0
Md	8	8	8	0	6	1	0	0	0	0
Mass	10	5	10	0	0	0	0	0	0	0
Mich	15	15	15	15	6	7	0	1	0	0
Minn	8	8	8	0	2	0	0	3	0	0
Miss	4	4	2	0	0	0	0	4	0	1
Mo	9	9	9	9	0	8	0	0	0	0
Mont	1	1	1	1	0	0	0	0	0	0
Neb	3	3	3	1	1	1	0	0	0	0
Nev	3	3	3	3	0	3	0	0	0	0
N H	2	2	2	2	0	0	0	0	0	0
N Jer	13	12	13	9	4	0	2	2	1	8
N Mex	3	3	3	0	0	0	0	0	0	0
N York	29	27	28	0	0	0	0	4	3	3
No C	13	13	13	0	0	0	0	0	0	0
No D	1	1	1	0	0	0	0	0	0	0
Ohio	18	16	18	0	0	0	0	0	0	1
Okla	5	5	3	0	0	0	0	0	0	2
Ore	5	5	5	2	0	4	0	1	0	0
Penn	19	15	16	7	4	5	0	0	0	2
R I	2	2	2	0	1	0	0	0	0	2
So C	6	6	4	0	2	2	0	0	0	0
So D	1	1	1	1	0	0	0	0	0	0
Tenn	9	9	8	0	0	0	0	0	0	9
Tex	32	29	28	31	0	0	0	0	0	5
Utah	3	3	3	1	2	3	0	3	0	0
Vt	1	1	1	0	0	0	0	1	1	1
Va	11	11	8	0	0	0	0	0	0	5
Wash	9	8	9	3	1	0	0	0	0	0
W Va	3	3	3	0	0	0	0	1	0	0
Wis	8	7	8	2	2	2	0	0	0	3
Wyo	1	1	1	1	0	0	0	0	0	0
TOTAL	436	407	400	143	47	43	3	26	5	44

The chart above shows how many nominees each party has.
The parties in the "Other(1)" column are: Cal., Peace & Freedom; Kansas, Reform; Me., Socialist Equality; Mich., Socialist Equality; Minn., Independence; Miss, Reform; N.J., Socialist; N.Y., Independence; Or., Socialist; Ut., Personal Choice; Vt, Prog.; W.V., Mountain.
The parties in the "Other(2)" column are: N.J. & N.Y, Conservative; Vt, Liberty Union.

2004 PETITIONING FOR PRESIDENT

STATE	REQUIREMENTS		SIGNATURES COLLECTED					DEADLINE later method
--	FULL PARTY	CAND.	LIB'T	GREEN	NADER	CONSTI.	SWP	DEADLINE later method
Alabama	41,012	5,000	*5,000	*1,500	*4,000	*already on	0	*Sep 7
Alaska	(reg) 6,937	#2,845	already on	already on	*already on	already on	too late	Aug 4
Arizona	16,348	14,694	already on	too late	*in court	too late	too late	Jun 9
Arkansas	10,000	1,000	*already on	*already on	*already on	*already on	too late	Aug 2
California	(reg) 77,389	153,035	already on	already on	too late	already on	too late	Aug 6
Colorado	(reg) 1,000	#pay fee	already on	already on	already on	already on	already on	July 5
Connecticut	no procedure	#7,500	*finished	already on	*finished	*already on	too late	Aug 4
Delaware	(reg) 259	5,184	already on	already on	*already on	already on	*finished	Aug 21
D.C.	no procedure	*3,567	*finished	already on	*finished	*too late	*finished	Aug 17
Florida	be organized	93,024	already on	already on	already on	already on	already on	Sep 1
Georgia	37,153	#37,153	already on	too late	too late	too late	too late	July 13
Hawaii	677	3,711	already on	already on	*finished	*finished	too late	Sep 3
Idaho	10,033	5,017	already on	*too late	*too late	already on	too late	Aug 31
Illinois	no procedure	#25,000	*already on	too late	*in court	too late	too late	Jun 21
Indiana	no procedure	#29,553	already on	too late	too late	too late	too late	Jun 30
Iowa	no procedure	#1,500	*already on	*already on	*already on	*already on	*already on	Aug 13
Kansas	16,714	5,000	already on	*too late	*already on	*already on	too late	Aug 2
Kentucky	no procedure	#5,000	*4,000	*500	*3,000	*6,000	0	*Sep 7
Louisiana	(reg.) 128,120	#pay fee	*already on	0	0	0	0	Sep 7
Maine	25,260	#4,000	*already on	already on	*finished	*already on	too late	Aug 9
Maryland	10,000	27,899	*already on	already on	*disputed	already on	too late	Aug 2
Mass.	est. (reg) 38,000	#10,000	already on	already on	*disputed	too late	too late	July 27
Michigan	31,776	31,776	*already on	already on	*in court	already on	too late	July 15
Minnesota	112,557	#2,000	*1,200	already on	*900	already on	*1,500	Sep 14
Mississippi	be organized	#1,000	already on	already on	already on	already on	*already on	Sep 3
Missouri	undetermined	10,000	already on	*too late	*disputed	*already on	too late	July 26
Montana	5,000	#5,000	already on	already on	*already on	already on	too late	July 28
Nebraska	4,810	2,500	already on	*already on	*finished	already on	*finished	*Sep 1
Nevada	5,019	5,019	already on	already on	already on	already on	too late	July 9
New Hamp.	13,260	#3,000	*finished	*too late	*finished	finished	too late	Aug 11
New Jersey	no procedure	#800	*already on	*already on	*already on	*already on	*already on	July 26
New Mexico	2,422	14,527	already on	already on	*14,000	already on	too late	Sep 7
New York	no procedure	#15,000	*already on	*finished	*already on	*finished	*already on	Aug 17
No. Carolina	58,842	100,533	already on	too late	*in court	too late	too late	Jul 6
North Dakota	7,000	#4,000	*4,000	0	*3,000	*3,500	0	Sep 3
Ohio	32,290	5,000	*finished	*finished	*finished	already on	too late	Aug 19
Oklahoma	51,781	37,027	in court	too late	too late	too late	too late	Jul 15
Oregon	18,864	15,306	already on	already on	*finished	already on	too late	Aug 24
Penn.	no procedure	25,697	*already on	*already on	*disputed	*already on	too late	Aug 2
Rhode Island	16,592	#1,000	*1,100	already on	*1,500	*1,200	*finished	Sep 3
So. Carolina	10,000	10,000	already on	already on	*already on	already on	too late	Jul 15
South Dakota	8,364	#3,346	already on	0	*already on	already on	0	Aug 3
Tennessee	41,322	*275	*already on	*disputed	*already on	*already on	too late	Aug 19
Texas	45,540	64,077	already on	too late	*in court	too late	too late	May 24
Utah	2,000	#1,000	already on	*0	*1,000	already on	*1,300	Sep 3
Vermont	be organized	#1,000	already on	*0	*virtual on	already on	*100	Sep 16
Virginia	no procedure	#10,000	*already on	*too late	*finished	*finished	too late	Aug 20
Washington	no procedure	*#1,000	already on	already on	*already on	*already on	already on	Aug 24
West Va.	no procedure	#12,963	*already on	*too late	finished	*too late	too late	Aug 2
Wisconsin	10,000	#2,000	already on	already on	*4,000	already on	0	Sep 7
Wyoming	3,644	3,644	already on	*too late	*finished	*finished	too late	Aug 23
TOTAL STATES ON			*41	*27	*16	*32	*7	--

An * means that the entry changed since the last issue.

The Nader column assumes that the Reform Party national convention (in session as this newsletter goes to print) re-affirms Nader’s nomination.

September 1, 2004 – Volume 20, Number 5