March 5, 2005 Ė Volume 20, Number 11

This issue was originally printed on white paper.

Table of Contents

  1. ARKANSAS LEGALIZES ODD-YEAR PETITIONING FOR PARTIES
  2. BURLINGTON IRV VOTE
  3. DUE PROCESS VICTORY
  4. POST OFFICE HEARING IS INTENSE
  5. OTHER LAWSUIT NEWS
  6. KENTUCKY BILL PASSES HOUSE UNANIMOUSLY
  7. OHIO RESTRICTION COULD BE REJECTED
  8. HOW TO COMPARE PRESIDENTIAL ACCESS?
  9. IRAQ BALLOT
  10. LEGISLATIVE NEWS
  11. BOOK REVIEW: MADAME PRESIDENT
  12. 2006 PETITIONING FOR STATEWIDE OFFICE
  13. SUBSCRIBING TO BAN WITH PAYPAL


ARKANSAS LEGALIZES ODD-YEAR PETITIONING FOR PARTIES

On January 24, the Arkansas Secretary of Stateís Legal Counsel, Tim Humphries, ruled that a political party may circulate a petition for recognition at any time, as long as it finishes the job in 150 days. The ruling represents a change from policy in effect from 1997 through 2004. In those years, it was illegal for a new party petition to be circulated except during the first five months of an even-numbered year.

The only parties that have been on the Arkansas ballot (other than for president) in the last 70 years have been the two major parties, the American Party in 1968-1970, and the Reform Party 1996-1998. Arkansas procedures for getting on for president are much easier than for other office (only 1,000 signatures are needed for president). Therefore, many minor parties have been on for president. But only two minor party candidates have been on the ballot for U.S. Senate in Arkansas, in the entire history of popular elections for that office (the voters started electing U.S. Senators in 1914). Except for a Socialist in 1936, an independent in 1978, and a Reform Party nominee in 1998, only Democrats and Republicans have ever been on the Arkansas ballot for U.S. Senate.

As a result of the ruling, the Arkansas Libertarian Party is considering qualifying for the 2006 ballot, and other parties may try as well. Paid petition circulators are much cheaper in odd years, since there isnít as much demand for their services.

The only states that still make it illegal for petitions to recognize a new party to be circulated in odd years are Rhode Island, Texas and Wisconsin.

The Secretary of Stateís ruling was obtained by the ACLUís Voting Rights office in Atlanta. The ACLU had won a federal court decision against Arkansas in 2001, Green Party of Arkansas v Priest, 159 F.Supp.2d 1140.

That decision said the state must provide some method for a new party to qualify in a special election. Arkansas was holding a special election for congress in 2001. Since it was illegal for anyone to circulate a petition to qualify a new party in odd years, it was impossible for a new party to participate in that special election; but that situation was held unconstitutional.

In December 2004, the ACLU had written to the Secretary of State, asking if the state had implemented the 2001 federal court decision. The Secretary of State responded with his ruling.

The ruling does not explain the basis for the new permissive policy, but it seems to depend partly on the 2001 court decision, and partly on the fact that in 2003, the legislature had repealed a one-sentence law that had contained the deadline for a new party to qualify. That sentence had been in sec. 7-7-204(a), and had said, "The petition shall be filed with the Secretary of State no later than the first Monday in May before the general election." Since that sentence is now repealed, there is no explicit law giving a deadline for the new party petition.

The ruling says, "Please note that the new party must submit its petition in time to meet the deadline for candidate qualification." Sec. 7-7-203(j) requires qualified parties to certify the names of their nominees 60 days before the general election. Therefore, it appears that a new party can now qualify as late as July of an election year, since sec. 7-7-204 gives elections officials two months for the petition verification process.


BURLINGTON IRV VOTE

On March 1, Burlington, Vermont voters will decide whether to implement Instant-Runoff voting in all city elections.


DUE PROCESS VICTORY

On February 10, U.S. District Court Judge James C. Mahan, a Bush Jr. appointee, ruled that it is unconstitutional for a state to change the requirements for an initiative petition in the middle of the petitioning period. Committee to Regulate and Control Marijuana v Heller, cv-s-05-41. The state will not appeal.

As a result, three Nevada initiatives qualified for the 2006 ballot that would otherwise not have qualified. Besides the marijuana initiative, they are the "Second Hand Smoke" and "Clean Air" initiatives. Nevada requires a petition signed by 10% of the last vote cast. The period for circulating initiatives in Nevada runs in any even-numbered year from January 1 to mid-November. Then, the initiative is submitted to the following yearís legislative session. If the legislature declines to enact it, it goes on the ballot in the year after that.

The problem is that "last vote cast" is unclear. In the past, the state had interpreted it to be the number of votes cast in the election held before the initiative begins to circulate. But this year, the state changed its interpretation, and said "last vote cast" is the election held just before the initiative is submitted. The practical difference is huge. In the case of the three initiatives circulated during 2004, they needed either 51,337 signatures (based on 2002 turnout) or 83,157 (based on 2004 turnout). The initiatives had enough based on the 2002 turnout, but not enough based on the 2004 turnout.

The court decision is only two pages, but based on the briefs submitted in the case, it is clear that the basis for the decision is that U.S. Constitution was violated because the state changed its interpretation of how many signatures were required, after the initiative was launched.


POST OFFICE HEARING IS INTENSE

On February 8, the U.S. Court of Appeals, D.C., heard arguments in Initiative & Referendum Institute v U.S. Postal Service, no. 04-5045. The issue is the constitutionality of a 1998 post office regulation that bars petitioning on post office sidewalks.

Most such hearings are 30 minutes, but in this case, two of the three judges were so interested, the hearing lasted more than an hour. The three judges were Douglas Ginsburg, Karen Henderson (Reagan appointees), and Merrick Garland (Clinton).

This lawsuit had been filed in 2000. In 2002, right in the middle of the case, the Postal Service changed its understanding of its own regulation. It had originally banned all petitioning, period. But in 2002 it said that itís OK for petitioners to stand on a postal sidewalk and ask people to sign the petition. However, the actual signing could not take place on the postal sidewalk. Instead, the circulator and the signer had to leave the postal sidewalk for the actual signing. Or, if the circulator had a partner, the circulator on the sidewalk could ask the potential signer to go to the location of the partner, and sign at that other location.

The U.S. District Court had upheld the regulation as modified, in a decision that stressed that sometimes petition circulators have bad manners and irritate people. But, that cannot be the basis of preventing speech. The U.S. District Court Judge had seemed very uninterested in the case, and had taken more than fifteen months (after the final oral argument) to issue his opinion.

By contrast, two of the three Appeals judges were extremely interested in the case, and seemed skeptical of the regulation, especially since the Postal Service permits voter registration on its sidewalks. If the act of asking someone to fill out a form and then sign it is OK in the case of voter registration, it seems peculiar that it is not OK for petitioning. Filling out a voter registration form takes longer than signing a petition.


OTHER LAWSUIT NEWS

California: on February 2, supporters of Donna Frye (write-in candidate for San Diego Mayor) lost their lawsuit to have all her votes counted. Lawrence v Murphy, Superior Court, San Diego, GIC 840839. Plaintiffs have filed a notice of appeal.

Illinois: on January 21, an Illinois Appellate Court upheld a state law that tells new political parties that they must run a full slate of candidates. Green Party v Henrichs, 3-04-642. The party wanted to run candidates for three Iroquois County offices. Their petition, which was otherwise valid, was disqualified since the party didnít also run candidates for the 13 county board positions.

The decision says nothing about the many U.S. Supreme Court decisions that have upheld political party autonomy. It claims the law is needed to prevent voter confusion. The party is not appealing.

Illinois (2): on January 13, plaintiffs in Griffin v Roupas, 04-988, asked the U.S. Supreme Court to hear their appeal. The issue is a state law that lets people vote absentee if they are out of their home county on election day, but wonít let them vote absentee for any other reason. Some of the plaintiffs work such long hours and have such long commutes (within the same county) that they cannot get home in time to vote.

New Hampshire: on January 5, the Libertarian and Constitution Parties filed a lawsuit in state court, arguing that the stateís ballot access laws violate the New Hampshire Constitution. Libertarian Party v Gardner, Merrimack Co. 05-E-0004.

Oregon: on February 17, the U.S. Supreme Court asked Oregonís Secretary of State to respond to Ralph Naderís ballot access lawsuit. Kucera v Bradbury, 04-872. The issue is whether it violates due process for a state to create new rules for petition validity, after the petition has been submitted. The Courtís action shows that it is taking this case seriously. The Court will probably say whether it will hear this case in early April.

Utah: on February 1, the State Supreme Court issued a decision in Adams v Swensen, 2004-922, saying that the stateís laws on candidacy should be construed permissively. Last year, just before the November election, the Court had let the Republican Party candidate for Mayor of Salt Lake City withdrew. The party was permitted to substitute a new nominee. The Court has now explained why it did so.

Vermont: on February 15, the 2nd circuit voted not to rehear Landell v Sorrell, 00-9159. The original panel had upheld an expenditure limit for Vermont state office, even though the U.S. Supreme Court ruled in 1974 that expenditure limits on campaigns are unconstitutional, unless public funding is in place. Although Vermont has public funding for Governor, it doesnít for other state offices.


KENTUCKY BILL PASSES HOUSE UNANIMOUSLY

On February 17, the Kentucky House unanimously passed the Secretary of Stateís election law bill, HB 141. It makes two ballot access improvements: (1) minor party and independent candidates for president and Congress no longer need to file a declaration of candidacy on April 1. Now they are free to enter the race as late as August, when their petitions are due; (2) minor party and independent candidates for president may now circulate petitions as early as they wish, instead of being prevented from starting until November of the year before the presidential election. Kentucky permits presidential stand-ins on petitions, so minor parties can do the presidential petition even before they have chosen their slate.


OHIO RESTRICTION COULD BE REJECTED

The January 1 B.A.N. said the Ohio legislature had passed a campaign finance bill, HB 1, which makes it illegal to pay petition circulators per signature. The AFL-CIO opposes the bill and is now circulating a referendum petition. If it gets enough signatures, the voters will decide whether to enact or reject the law.


HOW TO COMPARE PRESIDENTIAL ACCESS?

There is a need for an objective means to compare ballot access among the fifty states. On this page are two charts, each ranking the states in difficulty, for minor party and independent presidential candidates. For each chart, the easier states are at the top, and the hardest states are at the bottom.

The left column below shows how many presidential candidates (other than the Democratic and Republican candidates) have been on the ballot in each state, on the average. The period covered is 1972-2004.

The advantage of using this method is that it is realistic. Obviously, in a genuine sense, the easiest states are the states in which the greater number of candidates does qualify.

The disadvantage of this system is that it covers the last 33 years, and some states have changed their laws during that period. Therefore, this method isnít necessarily a fair method to rank states that have changed their laws since 1972.

The right column below shows the number of signatures needed to qualify an independent presidential candidate, or the presidential candidate of a previously unqualified party, in 2004, divided by the number of registered voters in that state as of autumn 2004. When states have different requirements for independent presidential candidates versus the candidates of new parties, the easier method is used. If itís ambiguous which method is easier, then the method that has been used more often has been deemed the easier method.

The disadvantage of this system is that it doesnít account for other difficulties: severe notarization requirements, restrictions on who can circulate, early deadlines, how tough it is for a party to remain on the ballot.

Yet, there is a high correlation between the two lists. Four states are among the bottom six states on both lists: Georgia, Oklahoma, West Virginia and Wyoming.

NUMBER OF CANDIDATES

SIGNATURES NEEDED (%)

     

New Jersey

8.7

Minnesota

7.8

Washington

7.6

Wisconsin

7.4

Iowa

7.3

Tennessee

6.8

Utah

6.7

Colorado

6.6

North Dakota

5.7

Vermont

5.7

Louisiana

5.6

Rhode Island

5.4

Arkansas

5.2

Michigan

5.2

New York

4.9

Ohio

4.9

New Mexico

4.8

Alabama

4.7

Kentucky

4.7

Mississippi

4.7

Illinois

4.3

California

4.1

Pennsylvania

4.0

Delaware

3.7

Kansas

3.7

New Hampshire

3.3

Alaska

3.2

South Carolina

3.2

Hawaii

3.1

Idaho

3.1

Nebraska

3.1

Maine

3.0

Massachusetts

3.0

Nevada

3.0

Virginia

3.0

Connecticut

2.9

South Dakota

2.9

Florida

2.7

Maryland

2.7

Oregon

2.7

Arizona

2.6

Indiana

2.6

Montana

2.4

North Carolina

2.1

Texas

2.1

Missouri

2.0

Wyoming

2.0

West Virginia

1.8

Oklahoma

1.4

Georgia

1.2

 

Colorado

pay $500

Louisiana

pay $500

Florida

be organized

Tennessee

.00+%

New Jersey

.02%

Washington

.03%

Wisconsin

.05%

Mississippi

.05%

Delaware

.05%

Arkansas

.06%

Ohio

.06%

Minnesota

.07%

Utah

.08%

Iowa

.08%

Hawaii

.10%

New York

.13%

Rhode Island

.15%

Kentucky

.18%

Alabama

.18%

New Mexico

.22%

Nebraska

.22%

Vermont

.23%

Massachusetts

.24%

Virginia

.24%

Missouri

.26%

Kansas

.30%

Pennsylvania

.31%

Illinois

.33%

Maryland

.34%

Texas

.35%

New Hampshire

.35%

Connecticut

.37%

Maine

.42%

South Carolina

.43%

Michigan

.44%

Nevada

.47%

Arizona

.56%

Alaska

.60%

Idaho

.63%

South Dakota

.67%

Indiana

.69%

Oregon

.76%

Montana

.78%

North Dakota

.82%

Georgia

.87%

California

.92%

North Carolina

1.07%

West Virginia

1.11%

Wyoming

1.57%

Oklahoma

1.73%

 


IRAQ BALLOT

Below is a copy of the Iraq ballot. Iraqi voters had a choice of 111 parties. The April 1 B.A.N. will include information on the election returns.


LEGISLATIVE NEWS

Alabama: Rep. John Rogers (D-Birmingham) has introduced four ballot access bills. H214 lowers petitions for independent candidates; H215 lowers them for minor parties; H216 provides for a later deadline for minor parties to nominate; and H221 lowers the vote test for a party. See www.independentalabama.org.

Alaska: the House State Affairs Committee has already held two hearings on HB94, the Elections Divisionís election law bill. The companion bill in the Senate is SB76. A third hearing is planned. The original bill makes two improvements (see Feb. 1 B.A.N.), but the Green Party is working for a third improvement: to expand the 3% vote test for a party to retain its status, from just Governor, to either house of Congress as well.

Arizona: Senator Karen Johnson is trying to amend SB1205 (a bill of election law changes that originally had nothing to do with ballot access) so that the bill also reduces the number of signatures needed for a minor party to get on the ballot.

California: AB 43, which deletes the requirement that write-in voters must check the box next to the write-in line, has a hearing in the Assembly Elections Committee on March 15.

Hawaii: HB119 and SB1042 both delete the requirement that petition signers must include their Social Security numbers on petitions.

Illinois: HB 758 reduces the number of signatures needed for statewide minor party and independent candidate petitions from 25,000 to 10,000; and reduces the district petitions from 5% to 1%.

Iowa: SF80 makes it easier for a party to remain on the ballot, by changing the 2% vote test from the office at the top of the ticket, to any statewide race.

Maine: negotiations continue on the bills to make it easier for parties to remain on the ballot, LD329 and LD254. One bill is likely to pass.

Nebraska: on February 9, a hearing was held on LB473. It would make it easier for a party to remain on the ballot, but would eliminate the ability of a party to be qualified in just a single district. Libertarians testified for the bill, but Greens testified against it. Greens felt that the advantage of the bill (eliminating the need for a party to poll any particular share of the vote in presidential elections) didnít compensate for the disadvantage. Because of the Green opposition, the bill didnít pass.

North Carolina: H88 reduces the number of signatures needed for both minor parties and independents, and also makes it easier for a party to stay on the ballot. It has 3 Democratic sponsors and 2 Republican sponsors.

Oklahoma: the fate of the bill to make it easier for parties to get on the ballot and stay on, HB 1429, rests with the Speaker of the House. See www.okballotchoice.org.

Tennessee: the bills to let candidates who use the independent petition procedure use a partisan label on the ballot are SB1327 and HB1776.

Washington: SB5745 implements the initiative passed by the voters last November, I-872. It imposes a "top-two" system on congressional and state elections. The initiative itself had major drafting errors, but SB5745 eliminates those errors.

SB5745 passed the Senate Elections Committee on February 21. Libertarians and Greens testified against it, since the "top-two" system will almost certainly keep minor party members off the November ballot.

However, the bill has a few helpful features. It cuts the number of signatures needed for minor party and independent presidential candidates from 1,000 to 250. Also, it says that the 5% vote test need only be met in presidential/gubernatorial election years, not the mid-term years. Finally, the bill retains the old 5% vote test, but says it can be met at either the primary or general election.


BOOK REVIEW: MADAME PRESIDENT

Madame President, by Mark A. Dunlea, paperback, 431 pages, $20.99, published by Big Toad Books, 156 Big Toad Way, Poestenkill NY 12140.

Madame President is a work of fiction, set in the presidential election of 2000. The sub-title is, The Unauthorized Biography of the First Green Party President. It tells an alternative, imaginary history of that election. In the novel, the Green Partyís choice for vice-president, Rachel Moreno, although little known, is extraordinarily charismatic, and also extraordinarily lucky.

This review wonít give away the plot, except to say that the Greens carry Morenoís home state of Washington.

In the novel, the Democrats carry Florida, but lose Washington to the Greens. As a result, no presidential candidate has a majority in the Electoral College. With a Republican majority in the House, the Democrats realize their only chance of winning the presidency is to persuade the Green Party presidential electors to vote Democratic for president, when the electors meet in December. Greens bargain with a great deal of toughness, and consent to do this only if the Democratic electors support Moreno for vice-president.

Once the author has set forth a plot device that enables the Greens to win the vice-presidency, it is not much of a stretch for him to carry the story a step further. As is obvious from the subtitle, Moreno becomes president, and she must deal with September 11, 2001.

A large share of the novel also is set in the 1980ís, when Moreno and her partner were community organizers. This part of the book, in this reviewersí opinion, was less interesting and should have been shorter. One of the best parts of the book covers Morenoís tenuous situation with Congress, especially in the weeks while she was only acting President, because the President was alive, but in a coma.


2006 PETITIONING FOR STATEWIDE OFFICE

STATE
REQUIREMENTS
SIGNATURES COLLECTED
Deadline
FULL PARTY
CAND.
LIB'T
GREEN
CONSTI
NAT LAW
REFORM

Alabama

41,012

41,012

*1,200

0

0

0

0

in court

Alaska

(reg) 9,258

#3,128

*6,748

in court

0

0

0

Aug. 22

Ariz.

26,835

est. #20,000

already on

0

0

0

0

June 14

Arkansas

10,000

10,000

*0

*0

*0

*0

*0

*July 1

Calif.

(reg) 77,389

165,573

already on

already on

already on

already on

40,516

Aug. 11

Colorado

(reg) 1,000

#1,000

already on

already on

already on

534

337

July 10

Connecticut

no procedure

#7,500

already on

0

already on

0

0

Aug. 11

Delaware

est. (reg) 280

est. 5,600

already on

already on

already on

257

211

July 15

D.C.

no procedure

est. #3,800

can't start

already on

can't start

can't start

can't start

Aug. 30

Florida

be organized

pay fee

already on

already on

already on

already on

already on

July 18

Georgia

42,676

#42,676

already on

can't start

can't start

can't start

can't start

July 11

Hawaii

648

25

already on

already on

0

already on

0

July 25

Idaho

11,968

5,984

already on

0

already on

already on

0

Aug. 31

Illinois

no procedure

#25,000

can't start

can't start

can't start

can't start

can't start

June 26

Indiana

no procedure

#29,553

already on

0

0

0

0

June 30

Iowa

no procedure

#1,500

0

0

0

0

0

Aug. 18

Kansas

16,477

5,000

already on

0

0

0

already on

July 31

Kentucky

no procedure

#2,800

0

0

0

0

0

Aug. 8

La.

(reg) 1,000

pay fee

already on

*940

50

23

virtually on

Sep. 7

Maine

24,798

#4,000

0

already on

0

0

0

May 25

Maryland

10,000

est. 29,400

already on

already on

already on

0

0

Aug. 7

Mass.

est. (reg) 41,000

#10,000

23,900

9,509

56

44

1,168

Aug. 1

Michigan

31,731

31,731

already on

already on

already on

already on

0

July 20

Minnesota

141,420

#2,000

0

0

0

0

0

July 18

Mississippi

be organized

1,000

already on

already on

already on

already on

already on

April 7

Missouri

10,000

10,000

already on

0

0

0

0

July 31

Montana

5,000

#5,000

already on

0

0

0

0

May 30

Nebraska

4,735

2,500

0

0

0

0

0

Aug. 29

Nevada

7,915

7,915

already on

0

already on

0

0

July 7

New Hamp.

20,299

#3,000

0

0

0

0

0

Aug. 9

New Jersey

no procedure

#800

0

0

0

0

0

June 6

New Mex.

3,782

14,079

*already on

already on

already on

0

0

July 11

New York

no procedure

#15,000

can't start

can't start

can't start

can't start

can't start

Aug. 22

No. Car.

69,734

law is void

*19,000

8,900

0

0

0

June 30

No. Dakota

7,000

1,000

0

0

0

0

0

Sep. 8

Ohio

56,280

5,000

in court

0

0

0

0

May 1

Oklahoma

73,188

pay fee

in court

0

0

0

0

June 21

Oregon

18,381

18,356

already on

already on

already on

0

0

Aug. 29

Penn.

no procedure

est. #24,000

can't start

can't start

can't start

can't start

can't start

Aug. 1

Rhode Isl.

21,815

#1,000

can't start

canít start

can't start

can't start

can't start

July 20

So. Caro.

10,000

10,000

already on

already on

already on

0

already on

July 15

So. Dakota

8,364

#3,346

already on

0

already on

0

0

June 20

Tennessee

41,314

25

0

0

0

0

0

April 6

Texas

45,253

45,253

already on

can't start

can't start

can't start

can't start

May 11

Utah

2,000

#1,000

already on

0

*finished

0

0

Mar. 17

Vermont

be organized

#1,000

already on

already on

0

0

0

Sep. 21

Virginia

no procedure

#10,000

can't start

can't start

can't start

can't start

can't start

June 13

Washington

no procedure

law is unclear

canít start

can't start

can't start

can't start

can't start

July 7

West Va.

no procedure

#8,724

0

0

0

0

0

May 8

Wisconsin

10,000

#2,000

already on

already on

already on

0

0

July 11

Wyoming

4,774

4,774

already on

0

0

0

0

Aug. 28

TOTAL STATES ON
*27
15
15
6
4
-

Three states (Ky., La., N.C.) have no statewide partisan races up in 2006, so the chart shows the requirements for a party to run a full slate for U.S. House.
*means a change since the Dec. 1, 2004 chart.
#means partisan label is permitted (other than "indp.").


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