The ballot access lawsuit filed by Ralph Nader and Michael Peroutka should have heard on October 29 (Friday). However, on Thursday, the judge recused herself. The case was assigned to another judge, and is reset for Monday, Nov. 1. It seems impossible that any injuctive relief will be forthcoming, due to the timing, even though the case is very strong. Nader and Peroutka have evidence that they do have enough valid signatures.

On November 2, voters in California and Washington will be voting on whether to install an election system that would remove minor party candidates from the November ballot, for all partisan office except president.

It is difficult to know whether the initiatives will pass. California’s Prop. 62 had the support of 44% of the voters in early September, according to the Field Poll. 31% were opposed; 25% were undecided. Another poll in late September showed the measure losing narrowly.

In Washington, a poll in October showed 52% support for I-872, and 35% opposition; 13% were undecided. But when the voter being polled learned that the initiative would leave only two choices on the November ballot, and that the two choices might both be Democrats, or both might be Republicans, support dropped dramatically.

Fortunately, both initiatives have been imperfectly written, a point that is helping the "no" campaigns, and which will be helpful in court if the initiatives do pass.

In California, Prop. 62 accidentally deletes the requirement that makes it illegal for anyone to run simultaneously for multiple offices. That requirement is currently in sec. 8003(b). The Los Angeles Times is about to run a story about this drafting error.

In Washington, I-872 creates internal conflicts inside the election code. Although it adds new language saying that all candidates run in the September primary on a single ballot, it fails to repeal existing language that members of unqualified parties, and independent candidates, can petition directly onto the November ballot. These unrepealed sections are 29A.24.101, 29A.36.011, and sections 29A.20.110-29A.20-200.

Even without these drafting errors, a strong case can be made that both initiatives conflict with federal law, and with Article One of the U.S. Constitution, concerning congressional elections. In 1872, Congress passed a law telling the states to hold their congressional elections in the first week in November. That same law also lets states hold a run-off afterward. As a result, in 1997, the U.S. Supreme Court unanimously told Louisiana (the only state with an election system similar to the California and Washington initiatives), to stop holding its first round of congressional elections in September.

As a result of that case, Foster v Love, Louisiana now holds its first congressional elections in November, and holds a run-off five weeks later if no one got at least 50% in November.

The California and Washington initiatives provide for the first round in June (California) and September (Washington). To avoid the Foster v Love problem, both initiatives provide for a second election in November, even if someone gets over 50% in the first round. Even if someone gets 98% in the first round, or even 100%, he or she would not be elected, and would run again against a solitary opponent, or alone against a potential write-in candidate, in November.

The problem with that is: the U.S. Supreme Court has ruled that congressional candidates who (1) enjoy a modicum of voter support; (2) meet the constitutional requirements to sit in Congress; and (3) have not sabotaged their own party, cannot be kept off the November ballot. "Modicum of support" means 5%. The Court has said it doesn’t matter whether "modicum of support" is measured with a 5% (of the number of voters) petition, or whether it is measured by a vote test in a preceding primary.

Since it takes approximately 30% to place second (according to actual primary election returns in past California and Washington blanket primaries), the two initiatives are telling candidates they cannot qualify for "the" congressional election (which Congress says must be in November), unless they show 30% voter support some months in advance. This is something that the states may not do. The congressional election belongs to all the people, not just the supporters of the two most popular candidates in the district (as determined months in advance).

Proponents of Prop. 62 never explain why they didn’t write it to follow the Louisiana timing. Supporters also fail to explain why, if their system would produce more "moderate" legislators and congressmen, the previous California experiment with the blanket primary didn’t seem to elect more "moderates". The legislature that sat between 1999 and 2002 was composed of members elected in the blanket primary, and it behaved almost identically to the legislature prior to 1999, and the current legislature.

~ Richard Winger

On October 22, the Pennsylvania state elections department ruled that people can cast write-in votes for president without having to write in a complete slate of 21 candidates for presidential elector (in a 2 x 1 1/2 inch space). The Nader campaign had requested the ruling, since Nader is not on the ballot in that state.

Today the Supreme Court declined to put Ralph Nader on the ballot in Ohio.

On Friday, Nader asked the high court to review Ohio’s decision to remove him, arguing that a state law that requires people who collect signatures on candidates’ petitions be registered voters violated free speech rights.

Nader’s request for a review went to Justice John Paul Stevens, who referred the matter to the full court. The justices denied the request without comment Tuesday.

Following is a report from attorney Andrew B. Spiegel in Illinois:

Nader is still “in court” in Illinois in both federal and state court. In federal (re unconstitutional filing deadline, signature requirement and definition of qualified voter), the U.S. Ct App. 7th Cir denied Nader’s Petition for Rehearing with Suggestion for Rehearing In Banc on October 15th; next step is either an application to Justice JP Stevens or a Petition for Cert to U.S. S. Ct.

On the state level, on October 19th the Il S. Ct. denied Nader’s Emergency Motion for a Rule 383 Supervisory Order, which would have short circuited the appeal process if it would have been granted. This was not, however, a decision on the merits.

The appeal on the merits was denied by the 1st District Appellate Court in an 18 page opinion issued October 22, 2004. A Petition for Leave to Appeal to the Il S. Ct. would be the next step.

The only legal recourse for Nader to appear on the ballot is the Application to Justice Stevens. We are still contemplating this move.

Nader and Camejo each signed 110 Statements of Intent to run as a write-in candidate in Illinois and these were sent to each of the 110 electoral jurisdictions. Calls are being made to each one to insure receipt of the Statement and inclusion in the approved list of write-in candidates.

Joel Hansen, a long-time activist in the Constitution Party in Nevada (the Nevada affiliate of the Constitution Party is called the Independent American Party), may be elected to the Nevada Supreme Court next month. Polls show him virtually tied with the incumbent justice; there are only two candidates in the race. The election is technically non-partisan.

On Saturday the 6th circuit (which contains Ohio, Michigan, Kentucky and Tennessee) ruled that the new federal law requiring provisional voting can be privately enforced. However, the panel also ruled that the federal law does not require provisional voting outside of the voter’s home precinct.

Provisional voting is required in federal elections throughout the U.S., because Congress included the idea in the “Help America Vote Act” of 2002. “Provisional voting” means a voter must be issued a ballot, even if he or she is not listed on the rolls. Provisional ballots are set aside and not counted on election night. They are counted days or weeks later, if elections officials determine the voter really was registered to vote. Sometimes clerical errors result in a voter not being listed in the precinct roster; provisional voting is a safeguard against a voter being disenfranchised due to such a clerical error.

The 6th circuit panel vote was 3-0. It consisted of two Republican appointees (Danny Boggs and Herman Weber) and one Clinton appointee (Ronald Gilman).

John Ashcroft’s Justice Department had intervened in the case, claiming that private individuals are not permitted to sue to enforce the Act. The Justice Department said only federal and state officials can enforce the act. The 6th circuit disagreed, and that may be the most significant result of Saturday’s ruling. Neither side plans a quick appeal to the U.S. Supreme Court, although this case, or one of the parallel cases now pending in other states might eventually be heard in that Court.

This morning, the US Supreme Court ruled against putting Ralph Nader on the Pennsylvania ballot.

The Supreme Court has not yet acted on a similar appeal from Nader involving Ohio.

Ballot Access News editor Richard Winger will appear on CNN this Sunday at 3:00 pm Eastern Time (12 noon Pacific) on the show “In the Money.”

We don’t know when in the show he will be on, but take the time to watch the show!

Today the Ohio Supreme Court rejected a request by Ralph Nader to place his name on the ballot.

Nader wanted the court to force election boards to review their voter registration lists, a process Nader said could have led to the validation of petitions to place him on the ballot.

The court ruled six-to-one against Nader, saying his campaign waited too long to raise its concerns.

Nader had argued that a backlog of applications prevented boards from confirming valid signatures on his petitions.

The court’s decision is available to read here. You can also read all the relevant briefs on the Nader Ohio issue at Andrew Hyman’s website.

The campaign is appealing this decision to the US Supreme Court, which is already meeting today to consider Nader’s Pennsylvania appeal.