On May 25, the California Supreme Court unanimously upheld the validity of Proposition 60, passed by the voters in November 2004. Proposition 60 added a single sentence to the California Constitution, and that single sentence appears to make it easier for small qualified parties to nominate candidates by write-in vote at their own primaries. The single sentence of Prop. 60 is “A political party that participated in a primary election for a partisan office has the right to participate in the general election for that office and shall not be denied the ability to place on the general election ballot the candidate who received, at the primary election, the highest vote among that party’s candidates.”

This constitutional provision seems to invalidate sec. 8605 of the California elections code, which won’t let any party nominate by write-in vote at its own primary unless the write-in candidate receives a number of write-ins equal to 1% of the vote for that office at the last general election. This law has kept all parties, other than the Democratic and Republican Parties, from nominating any candidates by write-in at its own primary, ever since 1968. The qualified minor parties simply don’t have enough members to meet the threshold, which is approximately 100,000 write-ins for statewide office, and 2,000 for U.S. House.

On May 25, the National Popular Vote organization had its bill concerning presidential electors introduced in New York. It is AB 11563. Similar bills will probably receive votes in the lower houses of the California and Louisiana legislatures during the first week in June. The National Popular Vote organization (www.nationalpopularvote.com) is coordinating these bills around the U.S. They would provide that states join a compact. When states containing a majority of electoral votes had joined, the compact would go into effect. Member states would only appoint presidential electors who are pledged to the presidential candidate who got the most popular votes nationwide.

On May 16, Lenora Fulani and her political allies filed a federal lawsuit against the state leaders of the New York Independence Party. Fulani v MacKay, s.d., 06-cv-3747. New York city is under the Pre-Clearance Requirements of the federal Voting Rights Act. The lawsuit justifiably claims that when the state Independence Party dissolved 3 county units of that party, that the action amounts to a change in a voting procedure that should have been submitted to the Justice Department before it was implemented. It is true that political party rules changes, in covered jurisdictions, are subject to the Voting Rights Act. A US Supreme Court case, Morse v Virginia Republican Party, 517 US 186, established that in 1996.

The Fulani lawsuit had one preliminary hearing on May 24 and will have a more substantive hearing on June 1. The case is before U.S. District Court Judge George Daniels, a Clinton appointee.

On May 23, the 4th circuit heard the Republican Party’s appeal in Miller v Brown. The issue is whether the party can exclude non-members from voting in Republican primaries. This is not easy, since Virginia doesn’t have registration by parties. The hearing went well for the Republican Party, on the procedural issue of whether the case is ripe for adjudication. Since the Republican Party’s rule won’t be applied until the 2007 state elections, the lower court had dismissed it on the grounds that it had been filed too early. The 4th circuit is likely to send it back to the U.S. District Court, with instructions to decide the main issue without further delay.

On May 24, the US Senate voted 49-48 to keep an amendment in the Immigration bill. The amendment would require the states to require photo ID for voting at the polls. However, shortly afterwards, the Senate invoked closure on the bill itself, 73-26. That later vote automatically defeated the voter photo ID amendment, and all other such “non-germane” amendments.

On May 23, the Conservative Party of New York endorsed candidates for statewide office. These statewide endorsements are tantamont to nomination, since it is extremely difficult for a non-endorsed candidate to force a small qualified party in New York to hold a primary (15,000 signatures of Conservative Party registrants would be needed to set up a Conservative Party primary; otherwise the endorsed candidates become the party’s nominees by default). The Conservative Party endorsed John Faso for Governor. He is one of the two contenders for the Republican Party’s nomination; the other contender is William Weld, who is also the Libertarian Party nominee. The Republicans won’t choose between them until a September primary.

Pat LaMarche, Green Party candidate for Governor of Maine, has submitted the 2,500+ small contributions, and the corresponding paperwork, to receive $1,400,000 in public funding. This is in accordance with Maine’s “clean elections” system, which does not discriminate for or against anyone because of political party affiliation.

On May 23, the Pennsylvania qualified minor parties filed their appeal brief in the 3rd circuit. The brief points out that the U.S. District Court Judge totally ignored the main point of the lawsuit…that the Green, Libertarian and Constitution Parties already meet Pennsylvania’s definition of “qualified party” (by polling over 67,000 votes in 2004 for at least one of their statewide nominees). Therefore, it is redundant to require them to submit 67,000 signatures on petitions, before their statewide nominees can be on the November ballot.

The brief also is noteworthy for its criticism of the 1971 U.S. Supreme Court precedent Jenness v Fortson. Normally it is not a good idea for any brief to criticize a U.S. Supreme Court precedent; briefs (at least in courts below the U.S. Supreme Court level) generally must simply accept all U.S. Supreme Court precedents, not criticize them. However, the new Pennsylvania brief’s criticism of Jenness v Fortson is not essential to that brief’s main argument. And it is valuable that a brief break with tradition and criticize Jenness v Fortson. Jenness v Fortson is a deeply flawed decision; it needs to be criticized. Jenness v Fortson was a unanimous U.S. Supreme Court decision in 1971 that upheld petition requirements (for independent candidates and new and unqualified political parties) of 5% of the number of registered voters. Jenness v Fortson is replete with factual errors, and also with doctrines that have since been repudiated by the U.S. Supreme Court itself. For example, a footnote in Jenness v Fortson suggests that if the plaintiff Socialist Workers Party nominees couldn’t get 88,000 signatures, they were free to run in the major party primaries. Since then, U.S. Supreme Court decisions have supported the right of political parties to exclude individuals who are not in sympathy with party principles, so Jenness is outdated.

So far this year, 5 state legislatures have had bills to set up an inter-state compact of states that will promise to choose presidential electors who will vote for the winner of the national popular vote. The bills in California and Louisiana are the only ones still alive. The California bill, AB 2948, passed the Assembly Appropriations Committee on May 17, with all Democrats voting “yes” and all Republicans voting “no”. It will probably pass the Assembly on May 25.

Similar bills are likely to be introduced in New York this week, and several other states next week.

The Connecticut legislature adjourned, and failed to pass any of the 5 bills that would have eased the discriminatory aspects of the “Clean Elections” public funding bills. The Connecticut legislature had passed “Clean Elections” in 2005, but basically excluded all candidates except Democrats and Republicans. The funding does not begin until 2008, so it is possible something will be done in the 2007 legislative session. If not, the ACLU will sue on behalf of the Green Party.