Ballot Access News -- October 1, 2004

16 WINS, 9 LOSSES IN BALLOT ACCESS CASES
LOSING CASES MIGHT STILL WIN AFTER ELECTION IS OVER

During the last thirty days, minor party and independent candidates have won sixteen lawsuits, and lost nine. Six more decisions on whether certain candidates should be on the ballot will be released the week of October 4-8 (see chart below).

The cases that have lost so far, merely lost in the sense of failing to get injunctive relief to place the candidate or party on the ballot. Generally, no declaratory judgment has been made in these cases. If these cases win after the election is over, they will be useful in future elections.

Winning Cases

Arkansas: on October 1, the Arkansas Supreme Court ruled 4-3 that Ralph Nader should be on the ballot. Populist Party of Arkansas v Chesterfield, 04-994. The Populist Party was created by Nader earlier this year, although he used that label in only Arkansas, Maryland and Alaska.

Everyone agrees that Nader collected more than 1,000 valid signatures. State law requires 1,000 signatures for independent presidential candidates, and for the presidential nominees of unqualified parties. The Secretary of State had placed him on the ballot, after checking his signatures. But a lower court judge had removed him on September 20. The lower court judge had ruled that the petitions should have said that the signers intended to vote for Nader.

The Arkansas Supreme Court reversed, ruling that state law does not require such wording. Furthermore, they noted that if the law did specify this wording, it would probably be unconstitutional. Courts in other jurisdictions have ruled in ten cases that states cannot require signers to say that they will vote for the candidate named on the petition, or that signers adhere to the beliefs of the group circulating the petition.

Colorado (1): on September 3, Walt Brown, Socialist presidential nominee, won his ballot access case. Brown v Davidson, Denver District Court, 04cv6907. The issue was the deadline. The law says it is "120 days before the general election", which is July 5. But that was a holiday. The Secretary of State says the deadline was July 2, but the judge ruled that substantial compliance means that Brown’s filing on July 5 was proper. Even though the Secretary of State’s office was locked, Brown slipped his papers under the door.

Colorado (2): on September 17, Nader won his ballot access case in Denver District Court. Pakiefer v Davidson, 04-cv-7546. The Secretary of State had placed Nader on the ballot because he was the Reform Party nominee, and that party is qualified in Colorado.

Democrats then sued the Secretary of State, saying that Nader was ineligible to be the Reform Party’s nominee, since he is not a member of that party. They also said his electors used the wrong form; and that the Reform Party should have used a state convention, not a committee meeting, to choose its presidential elector candidates.

The judge did not issue a written ruling, but orally he said that: (1) state law does not concern itself with the party membership of presidential candidates; (2) the Reform Party used the same form that the Republican Party had used; (3) state law doesn’t really tell qualified parties how to choose their presidential electors, and even if it does, substantial compliance is good enough.

Florida: on September 17, the Florida Supreme Court ruled 6-1 that Nader should be on the ballot as the Reform Party nominee. Reform Party of Florida v Black, 04-1755.

The Reform Party is ballot-qualified in Florida, so the Secretary of State had placed Nader on the ballot. But on September 15, a Circuit Court in Tallahassee removed him. That Court did not issue a written opinion, but the judge ruled orally that the Reform Party is not a national party, nor is it a qualified party in Florida, nor did it hold a proper national convention.

The judge quoted from the testimony of a disgruntled former member of the party. That member had testified that he had attended ten local meetings of the Reform Party, and that the meetings never accomplished anything, and that the party consisted of "grumpy old white men". The judge seemed more taken with this evidence than any other evidence, and he cited it to establish that the Reform Party is not a "bona fide" party.

Florida law lets any party be ballot-qualified if it submits a list of its party officers. There are no other requirements. Qualified minor parties (those with less than 5% of the registration) may place a presidential candidate on the ballot if a national convention is held. The Reform Party held a teleconference national convention on May 11 to nominate Nader. Then, in case that was challenged, they held a physical convention on August 27-29 in Texas.

The Florida Supreme Court ruled that since the law doesn’t define "national party" or "national convention", there is no basis to disqualify it. If the Court had agreed with the lower court, the precedent that a party must be "substantial" in some poorly defined sense would have threatened the other minor parties in Florida.

The victory for the Reform Party was all the more remarkable because the opposing attorney in the Florida Supreme Court was Laurence Tribe, famous Harvard Law Professor.

Maine: on September 28, a Superior Court in Kennebec County ruled that Nader should be on the ballot as an independent candidate. Melanson v Gwadosky, AP 04-68.

Nader needed 4,000 signatures. The town clerks had validated 4,118. The Democratic Party sued the Secretary of State to invalidate the petition. The Democrats argued that signatures with initials of first and middle names (instead of the full first name) were invalid, that slight deviations in addresses between the petition and the voter registration record made certain signatures invalid, and that ditto marks should not be used. But the judge ruled that if the standards were that high, ballot access would be unreasonably difficult.

Maryland: on September 20, the state Court of Appeals ruled that signatures on a statewide petition need not be segregated by county. Nader for President 2004 v Maryland Board of Elections, no. 76, 2004 term.

Everyone agreed that the petition to qualify the Populist Party had 10,000 valid signatures, except that the petitions were organized according to county of residence, and some voters had signed the wrong county sheet. The lower court had ruled those signatures invalid. The higher court reversed that, reasoning that since the state now has a centralized list of registered voters, separate sheets for each county are not important.

Michigan: on September 3, the State Court of Appeals ruled that Nader’s independent petition is valid. Deleeuw v Canvassers Bd, 257501. All agreed that it had enough valid signatures. But the Democrats sued, arguing that since Republicans collected most of the signatures independently of Nader, the petition is invalid. The court said nothing in the law requires the circulators to coordinate with the candidate.

Minnesota: on September 27, the State Supreme Court put the Independence Party’s candidates for Congress and state legislature on the November ballot. Moore v Kiffmeyer, A04-1775.

The issue was a long-forgotten law that requires a party that nominates by primary to attract a large number of voters into its primary. The law had not been enforced in 2000. Thus, the party had been shocked when Minnesota’s Republican Secretary of State had ruled, after the September 14 primary, that none of the party’s nominees could be on the November ballot because too few voters had voted in that party’s primary. Minnesota has an open primary, so each primary voter decides on primary day which party’s primary to use. The State Supreme Court ruled that the law could not constitutionally be applied, and promised to explain its reasoning later.

Nevada: on September 1, a state district court ruled that Nader’s independent petition is valid. On September 15, the State Supreme Court agreed. McKinley v Heller, 43881.

The Secretary of State had ruled that Nader’s petition had at least 5,019 valid signatures. Democrats had sued to overturn that ruling, charging that many of the circulators had listed their residence at hotels. However, both courts pointed out that no law even asks circulators to give their addresses. A regulation does require circulators to state where they "reside", but no definition of "reside" exists in the regulation.

New Mexico: on September 28, the State Supreme Court construed the state’s law to permit presidential candidates to use the independent petition procedure, even if that candidate is the nominee of a minor party in some other state or states. Nader v Griego, no. 28900.

The Secretary of State had placed Nader on the ballot, after determining that his independent petition had 14,527 valid signatures. But the Democratic Party had sued to remove Nader, arguing that state law requires independents to be unaffiliated with a political party. Nader has been a registered independent voter his entire life, but the objectors claimed that he is still "affiliated" with the Reform Party, since he accepted its nomination. The Reform Party is not on the ballot in New Mexico.

An hour after the Supreme Court decision putting Nader on the ballot, a federal court ruled that if New Mexico law really bans someone from being an independent presidential candidate in that state if he or she is the nominee of a party in some other state, then such a law would violate the First Amendment’s Freedom of Association clause. Gladstone v Vigil-Giron, cv-04-1078.

New York: on August 25, a U.S. District Court ruled that circulators for an independent candidate for district office need not live in that district. Chou v N.Y. Bd. of Elections, 04cv2758. The plaintiff is a Green Party legislative candidate.

Pennsylvania: on September 20, the State Supreme Court ruled that anyone may be an independent presidential candidate in Pennsylvania, even if he or she is the nominee of a minor party in another state or states. In re Nom. Paper of Nader, 154-2004.

The decision reversed the Commonwealth Court, which had ruled on August 27 that Nader could not be an independent candidate in Pennsylvania, since he was the Reform Party nominee in other states.

Nader is still not assured of being on the ballot, however. A review of his petition validity is still in process.

Washington (1): on September 15, a state court ruled that Nader should stay on the ballot as an independent candidate. Washington Democratic Comm. v Reed, 04-2-1822-3, Pierce.

Washington requires 1,000 signatures to put a statewide independent candidate on the November ballot. The law speaks of these signers as convention attendees, but allows multiple conventions. The state has long permitted independents to hold outdoor "conventions", in which any voter walking past a busy street corner may sign, and be deemed to have attended the "convention" being held on that corner. The objectors argued that the standard should be stricter. However, the Court said since the lawsuit didn’t sue Nader (it only sued the Secretary of State), it was fatally flawed.

Washington (2): on September 28, a Superior Court in Thurston County put the Libertarian Party nominees for Governor and U.S. Senator on the November ballot. Libertarian Party of Washington v Reed, 04-2019742.

The Libertarian Party is entitled to nominate by primary, since it polled over 5% of the vote in 2000. Other minor parties in Washington nominate by convention. Unfortunately for the Libertarian Party, the law requires nominees of parties that nominate by primary to poll 1% of all the votes cast in the primaries of all parties, for that office.

At the September 14 primary, approximately 1.3% of all the primary voters chose a Libertarian primary ballot. Most of the Libertarian candidates were unopposed in their own primary, so generally voters who chose a Libertarian ballot voted for the Libertarian candidate for each office, and they met the 1% test.

But for Governor, two Libertarians opposed each other in the primary, so, not surprisingly, neither polled the needed 13,000 votes. The judge ruled that the 1% vote test seems unnecessary to any state purpose, and works erratically.

West Virginia: on September 2, a Circuit Court ruled that Nader should remain on the ballot. State of West Virginia v Nader, 04-misc-332.

The Secretary of State, a Democrat, had placed Nader on the ballot after finding that he had 12,963 valid signatures. But the Attorney General had then sued to remove Nader, on the basis that some of the circulators had not displayed their "credentials". The Secretary of State had told Nader’s campaign that it was sufficient for the circulators to have their credentials on their person, but that the credential form need not be displayed. The judge ruled even if the law does require the credentials to be displayed openly, no law says that the penalty for disobeying it means the petition should be invalidated.

The Attorney General appealed to the State Supreme Court, but on September 9 it refused to hear the appeal.

Wisconsin: on September 30, the State Supreme Court put Nader on the ballot. Nader v Circuit Court for Dane Co., 04-2559-W. The issue is whether each candidate for presidential elector (besides the two at-large ones) must live in a separate congressional district. The Court said it doesn’t matter where candidates for presidential elector live, since they are all elected on a statewide slate.

Losing Cases

Alabama: on August 24, U.S. District Court Judge Myron Thompson upheld the state’s 3% (of the last vote cast) petition for minor parties and independent candidates. Swanson v Bennett, 2:02cv644-T. Since he forgot to rule on the challenge to the June petition deadline, plaintiffs have asked for a rehearing.

Alaska: on September 14, the State Supreme Court removed the Republican Moderate Party from the ballot. State v Metcalfe, S-11618. The court has not yet explained its reasoning. The party had been placed on the ballot in August by a lower court, which had ruled the state’s 3% definition of "political party" too difficult.

Arizona: on September 10, a federal court refused to put Nader on the ballot. Nader v Brewer, 4-1699. The issues are the state’s early June 9 petition deadline, and the ban on out-of-state circulators. Injunctive relief was denied on the basis that Nader should have filed the lawsuit earlier.

Illinois: on September 22, the 7^th circuit refused to put Nader on the ballot. The court said the case had been filed too late. The issues are the June petition deadline, and whether signatures are valid if the signer moved since last registering to vote. Nader v Keith, 04-3183.

North Carolina: on September 24, a federal court refused to put Nader on the ballot. Nader v Bartlett, 5:04-cv-675. The basis for the lawsuit is that since the law was declared unconstitutional earlier, and since Nader has a modicum of voter support, he should be put on the ballot. The court said the case had been filed too late. Nader will not appeal this case.

Ohio: on August 31, a federal court upheld the early petition deadline for new parties (a year before the election, the earliest in the nation). Libertarian Party of Ohio v Blackwell, 2:04-cv-08. The judge didn’t mention any of the four U.S. Supreme Court precedents against early deadlines. The party is appealing.

Oregon: on September 22, the State Supreme Court removed Nader from the ballot because some of the pages on his petition weren’t numbered, and because some of the signatures of the circulators were illegible. Kucera v Bradbury, S51756. On September 28, the U.S. Supreme Court voted 8-1 against a stay. However, that Court may hear the case next year.

Texas: on September 1, a federal court upheld a law that requires an independent candidate for president to get 41% more signatures than an independent candidate for other statewide office. Nader v Connor, A04-ca-264. The 5^th circuit will hear Nader’s appeal October 4.

West Virginia: on September 2, a circuit judge refused to put the Libertarian candidate for Governor on the ballot. The issue is the May petition deadline. McClure v Manchin, 04-c-2197. The appeal will continue.

US SUPREME COURT

On September 28, the U.S. Supreme Court asked for a response from San Francisco in the Terry Baum (Green Party) case (04-416). It also accepted the Oklahoma Libertarian case on whether a party may demand an open primary for itself (04-37).

STATE LEGISLATIVE NOMINEES

-	# seats	Repub.	Demo.	Lib’t.	Constit.	Green	Reform	oth(1)	oth(2)	indp.
Alaska	51	45	42	1	0	0	0	5	0	8
Ariz.	90	68	63	14	0	0	0	0	0	1
Ark.	118	56	92	0	0	0	0	0	0	3
Calif.	100	95	99	46	0	5	0	3	0	0
Colo.	83	72	74	21	0	1	1	0	0	1
Conn.	187	137	160	5	3	6	1	63	0	25
Del	51	40	38	4	0	0	0	1	0	0
Florida	142	105	76	11	0	0	0	1	0	3
Ga.	236	171	162	5	0	0	0	0	0	2
Hawaii	63	57	62	1	0	1	0	0	0	0
Idaho	105	102	59	5	6	0	0	4	0	0
Illinois	141	101	107	5	0	3	0	1	0	0
Indiana	125	105	88	26	0	0	0	0	0	0
Iowa	125	100	106	5	0	0	0	0	0	3
Kansas	165	139	111	21	0	0	8	0	0	0
Ky.	119	90	92	0	1	0	0	0	0	0
Maine	186	182	178	0	0	21	0	0	0	9
Mass.	200	121	186	5	0	5	0	1	1	10
Mich.	110	109	109	21	9	5	0	0	0	2
Minn.	134	133	133	1	0	7	0	21	0	2
Mo.	180	148	143	18	5	4	0	0	0	5
Mont.	125	103	110	0	13	4	0	0	0	5
Nevada	51	48	44	2	21	1	0	0	0	3
N.H	424	376	360	1	1	0	0	0	0	3
N.M.	112	74	81	3	0	0	0	0	0	1
N.Y.	212	169	178	2	1	5	0	5	41	3
No.C.	170	126	125	36	0	0	0	0	0	0
No.D.	72	63	69	0	0	0	0	0	0	1
Ohio	115	108	100	0	1	0	0	0	0	7
Okla.	126	106	102	1	0	0	0	0	0	5
Ore.	77	64	65	20	16	3	0	1	1	0
Pa.	228	167	176	13	2	10	1	1	0	6
R.I.	113	79	107	0	0	3	0	0	0	19
So.C.	170	123	98	8	0	1	0	2	0	0
So.D.	105	101	72	1	2	0	0	0	0	1
Tenn.	115	83	93	2	0	0	0	0	0	11
Texas	165	121	108	13	0	0	0	0	0	2
Utah	90	88	61	25	25	4	0	12	0	0
Vt.	180	147	153	1	0	1	0	10	0	9
Wash.	126	110	121	28	0	1	0	0	0	0
W.V.	117	117	108	0	0	0	0	1	0	1
Wisc.	115	89	91	5	2	3	0	0	0	9
Wyo.	76	65	43	1	0	0	0	0	0	0
TOT	5,795	4,703	4,645	377	108	94	11	132	43	160

Six states don’t elect state legislators this year: Alabama, Louisiana, Maryland, Mississippi, New Jersey, Virginia. Nebraska has non-partisan legislative elections. Therefore, those seven states aren’t listed above.

Parties in the "oth(1)" column are: Alaskan Indp; Peace & Freedom (Ca.); Working Families (Ct., N.Y.); Indp. Party (De.); British Reformed Sectarian (Fl.); Nat. Law (Id.); Soc. Equality (Ill.); Soc. Workers (Ma., Pa.); Independence (Mn.); United Citizens (S.C.); Freedom Soc. (Or.); Personal Choice (Ut.); Prog. (Vt.); Mountain (W.V.). Parties in the "oth(2)" column are America First (Ma.); in New York, 23 Conserv. and 18 Independence; and Socialist (Or.).

2004 BALLOT STATUS FOR PRESIDENT
(see the BAN Website chart for updates)

STATE	REQUIREMENTS		SIGNATURES COLLECTED
-	FULL PARTY	CAND.	LIB'T	GREEN	NADER	CONSTI.	SWP	SOCIALIST
Alabama	41,012	5,000	already on	off	already on	already on	off	off
Alaska	(reg) 6,937	#2,845	already on	already on	already on	already on	off	off
Arizona	16,348	14,694	already on	off	(in court)	off	off	off
Arkansas	10,000	1,000	already on	already on	already on	already on	off	off
California	(reg) 77,389	153,035	already on	already on	off	already on	off	off
Colorado	(reg) 1,000	#pay fee	already on	already on	already on	already on	already on	already on
Connecticut	no procedure	#7,500	already on	already on	already on	already on	off	off
Delaware	(reg) 259	5,184	already on	already on	already on	already on	off	already on
D.C.	no procedure	3,567	already on	already on	already on	off	already on	off
Florida	be organized	93,024	already on	already on	already on	already on	already on	already on
Georgia	37,153	#37,153	already on	off	off	off	off	off
Hawaii	677	3,711	already on	already on	in court	in court	off	off
Idaho	10,033	5,017	already on	off	in court	already on	off	off
Illinois	no procedure	#25,000	already on	off	in court	off	off	off
Indiana	no procedure	#29,553	already on	off	off	off	off	off
Iowa	no procedure	#1,500	already on	already on	already on	already on	already on	off
Kansas	16,714	5,000	already on	off	already on	already on	off	off
Kentucky	no procedure	#5,000	already on	off	already on	already on	off	off
Louisiana	(reg.) 128,120	#pay fee	already on	already on	already on	already on	already on	already on
Maine	25,260	#4,000	already on	already on	already on	already on	off	off
Maryland	10,000	27,899	already on	already on	already on	already on	off	off
Mass.	est. (reg) 38,000	#10,000	already on	already on	off	off	off	off
Michigan	31,776	31,776	already on	already on	already on	already on	off	already on
Minnesota	112,557	#2,000	already on	already on	already on	already on	already on	off
Mississippi	be organized	#1,000	already on	already on	already on	already on	already on	off
Missouri	undetermined	10,000	already on	off	off	already on	off	off
Montana	5,000	#5,000	already on	already on	already on	already on	off	off
Nebraska	4,810	2,500	already on	already on	already on	already on	already on	off
Nevada	5,019	5,019	already on	already on	already on	already on	off	off
New Hamp.	13,260	#3,000	off	off	already on	off	off	off
New Jersey	no procedure	#800	already on	already on	already on	already on	already on	already on
New Mexico	2,422	14,527	already on	already on	already on	already on	off	off
New York	no procedure	#15,000	already on	off	already on	off	already on	off
No. Carolina	58,842	100,533	already on	off	off	off	off	off
N. Dakota	7,000	#4,000	already on	off	already on	already on	off	off
Ohio	32,290	5,000	already on	off	in court	already on	off	off
Oklahoma	51,781	37,027	(in court)	off	off	off	off	off
Oregon	18,864	15,306	already on	already on	(in court)	already on	off	off
Penn.	no procedure	25,697	already on	already on	in court	already on	off	off
Rhode Island	16,592	#1,000	already on	already on	already on	already on	off	off
So. Carolina	10,000	10,000	already on	already on	already on	already on	off	already on
S. Dakota	8,364	#3,346	already on	off	already on	already on	off	off
Tennessee	41,322	*275	already on	off	already on	already on	off	off
Texas	45,540	64,077	already on	off	in court	off	off	off
Utah	2,000	#1,000	already on	in court	already on	already on	already on	off
Vermont	be organized	#1,000	already on	off	already on	off	already on	off
Virginia	no procedure	#10,000	already on	off	off	already on	off	off
Washington	no procedure	*#1,000	already on	already on	already on	already on	already on	off
West Va.	no procedure	#12,963	already on	off	already on	0	off	off
Wisconsin	10,000	#2,000	already on	already on	already on	already on	already on	already on
Wyoming	3,644	3,644	already on	off	already on	already on	off	off
TOTAL STATES ON (including DC)			49	28	35	37	14	8

If a lawsuit may result in winning the case in time for the election, the entry is "in court". If the decision can’t come in time to get the candidate on the ballot, the entry is "(in court)". The Socialist Equality Party presidential candidate is in state court in Ohio.

N.Y. INDEPENDENCE PICKS NADER

On September 26, the New York Independence Party nominated Ralph Nader for president. He had already successfully petitioned for a place on that state’s ballot under the label "Peace and Justice", so now he will be listed twice. The party met in Albany, and had 100 delegates. The party uses weighted voting and proxies. The results were Nader 91.4%, Cobb 4.2%, Kerry 4.0%, Bush .4%.

The Independence Party of New York has been on the ballot since 1994. It has never cross-endorsed any Republican or Democrat for the important offices of President, Governor, or U.S. Senator, except that it has nominated Charles E. Schumer (a Democrat) for U.S. Senator in 1998 and 2004. Past Independence Party nominees for President have been Ross Perot in 1996 and John Hagelin in 2000.

UTAH, VERMONT GREEN PARTIES

The September B.A.N. said that two ballot-qualified state Green Parties, Utah and Vermont, were unlikely to nominate David Cobb, the party’s national nominee. However, the Utah Greens did nominate Cobb. Jerry Parsons, the party’s liaison to the Utah Elections Director, then refused to certify Cobb (since he supports Nader), but a few days later he resigned. The party replaced Parsons, and the new liaison certified Cobb. However, the state won’t acknowledge the new liaison, so Cobb is suing the state. The Utah Supreme Court hears the case on October 5. Green Party of Utah v McKeachnie, 2004-813.

The Vermont Greens held a convention on September 12 and voted to nominate no one for president. Nader didn’t need their nomination, since he had qualified as an independent in Vermont.

NADER MATCHING FUNDS

Ralph Nader has now received $664,150.95 in primary season matching funds this year.

OTHER NEW YORK PARTY CHOICES

The N.Y. Working Families Party chose John Kerry for president on September 18, and the Conservative Party of New York chose George W. Bush on September 20.

AMERICAN PARTY

For the second presidential election in a row, the American Party has not placed its presidential candidate on the ballot in any state. This year’s nominee is Diane Templin.

LIBERTY UNION PARTY

On August 29, the Liberty Union Party of Vermont nominated John Parker for president. He is also the Workers World Party presidential nominee.

PROHIBITION PARTY LANDMARK

Louisiana’s ballot will contain the Prohibition Party name on November 2. One of the two Prohibition Party presidential nominees, Gene Amondson, qualified there. This is the first time in history that the Prohibition Party name has ever been printed on a government-printed ballot in Louisiana. That state first started using government-printed ballots in 1896, and required 1,000 signatures between 1896 and 1977. Even though the party was far stronger in the nineteenth and early twentieth centuries than it is today, it never qualified in Louisiana until now.

ANOTHER GREEN-LIBERTARIAN DEBATE

On September 30, the second Badnarik-Cobb debate was held. There will be a Green-Libertarian-Constitution-Camejo vice-presidential debate in Ohio on October 5.

October 3, 2004 – Volume 20, Number 6