JUNE 5 MAY UNLOCK COURT BALLOT ACCESS DEADLOCK

The U.S. Supreme Court will probably say on June 5 whether it will hear its first ballot access case since 1992. The Ohio independent petition deadline case (for office other than president) is on the Court’s conference for June 1. June 1 is a Thursday; the court won’t release the results until the following Monday, June 5. Lawrence v Blackwell, 05-1089.

If the Court accepts the case, this will be a signal that the lower courts should take more interest in ballot access lawsuits, and related lawsuits filed by minor parties and independent candidates. The pattern for ballot access lawsuits in federal court, ever since 2004, has been that (unless a ballot is about to be printed), the courts are slow to rule. In all of the examples below, all hearings have been held, all briefs have been filed.

Alabama: all briefs on the issue of the early June petition deadline (for minor parties and non-presidential independent candidates) were filed by December 2004, and we have been waiting for a decision from U.S. District Judge Myron Thompson ever since. Swanson v Bennett, 02-T-644.

Alaska: although the Green Party won injunctive relief on February 8, 2006, the court still hasn’t ruled on declaratory relief. Green Party of Alaska v State, 3AN-05-10787. The issue is whether the state’s definition of "political party" is too harsh.

Arizona (1): the Libertarian Party’s lawsuit to keep independent voters out of its primary was filed in 2002, and there is still no final decision from the U.S. District Court. Az. Lib’t. Party v Brewer, cv02-144-Tuc.

Arizona (2): Ralph Nader’s 2004 federal case against two ballot access laws is still pending. Nader v Brewer, cv04-1699-Phx. The issues are the early June petition deadline, and whether out-of-staters may circulate a petition for an independent presidential candidate.

Colorado: a lawsuit filed in 2004 over whether petition circulators (for a candidate for district office) can circulate that petition if they don’t live in that district, is still awaiting a decision. The last hearing was in December 2004. Koehler v Davidson, 04B-1377, U.S. Dist. Court.

Hawaii: Ralph Nader and the Constitution Party, together, filed a lawsuit in state court in 2004 against the state’s careless method of checking petition signatures. Nader v Yoshima, SC 27233. That case has been pending in the State Supreme Court since early 2005. The Court hasn’t even said yet whether it will schedule an argument, or decide it without one. Nader also filed a federal case in Hawaii in 2004, alleging that it is unconstitutional for a state to require six times as many signatures for an independent presidential candidate, as are needed for an entire new party. That case, Nader v Yoshina, 04-611, is on hold until the state case is settled.

Ohio: an oral argument was held on September 14, 2005, in the 6^th circuit, in Libertarian Party v Blackwell, 04-4215, and there is no decision yet. The case challenges the petition deadline for new parties (Ohio is the only state that requires a new party to submit its petition in the odd year before an election year).

Washington: an oral argument was held on February 6, 2006, in the 9^th circuit, in Washington State Republican Party v Logan, the case over the validity of the "top-two" primary.

On May 5, a state court in North Carolina denied the state’s motion for summary judgment, in Libertarian Party of N.C. v State Bd. Elections, 05-13073, Wake Co. Superior Court. Now there will be a trial. The lawsuit challenges the 2% petition for a party to get on the ballot, and the 10% vote test for it to remain on the ballot.

On May 25, the California Supreme Court unanimously upheld the validity of Proposition 60, passed by the voters in November 2004. Californians for an Open Primary v McPherson, S126780.

Proposition 60 added one sentence to the California Constitution: "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 new provision ought to overrule Elections Code section 8605, which has the practical effect of not letting small qualified parties nominate anyone by write-in vote at their primaries. Sec. 8605 says a write-in candidate in a partisan primary needs approximately 100,000 write-ins if running for statewide office, and about 2,000 write-ins if running for U.S. House. Generally, only the Democratic and Republican Parties have enough registered members to meet these thresholds.

The ability to nominate candidates by write-in vote at a party’s primary is important in California. No one can have his or her name printed on a primary ballot if that person has been a member of another qualified party for an entire year before filing. But anyone can be a write-in candidate in any party’s primary. If a minor party can nominate any willing candidate, regardless of recent past affiliation, the range of nominees available to minor parties will be expanded.

Proponents of the "top two" primary system had filed the lawsuit to invalidate Prop. 60. They had not argued against the substance of Prop. 60, but against the way it was put on the ballot by the legislature.

Most state legislatures have now adjourned for the year. So far, no bill improving ballot access for minor parties or independent candidates has passed this year. Such bills were defeated, or simply failed to move, in Georgia, Illinois, Maine, Massachusetts, Missouri, Nebraska, and New Hampshire.

The outcomes in Maine and Missouri are especially disappointing. The Maine bill, LD 329, had received unanimous approval in both houses. It would have made it easier for a qualified party to remain on the ballot. Current law requires a party to poll 5% (once every 4 years) for either Governor or President; the bill would have said a party also remains on the ballot if its registration equals at least one-half of 1% of the state total. But the bill didn’t pass because it was tabled to the Appropriations Process, and the legislature adjourned on May 24.

The Missouri bill, SB 726, would have a corrected a drafting error in a 1993 law. That error requires new parties to list candidates for presidential elector on their petition, even though new parties don’t need to list their nominees for other office on that petition. The bill had passed the Senate, but the House clerk failed to notice it was a "consent" bill, and therefore it wasn’t taken up in time.

In Connecticut, none of the bills introduced this year to ease the discrimination in public funding passed.

Helpful ballot access bills may still pass this year, in Michigan, North Carolina, Ohio, and Pennsylvania.

Both houses of the Vermont legislature passed S.48, before the legislature adjourned on May 10. It asks the Secretary of State to study Instant-Runoff Voting. Unfortunately, due to a procedural mix-up, the bill technically failed to pass. The legislature may be able to repair the problem when it returns on June 1. If not, the Secretary of State says she will conduct the study anyway.

On May 12, the Missouri legislature passed SB 1014, which (among other things) abolishes the "straight-ticket" device on Missouri general election ballots. Since Republicans in the legislature pushed this change, and since Missouri’s Governor is a Republican, it is likely that the bill will be signed. Governor Matt Blunt has until July 14 to decide.

"Straight-ticket" devices, also known as the "party circle" or "party lever," exists in fourteen other states. The device is a question at the very top of the ballot, asking the voter if he or she wishes to save time by using the straight-ticket device. It invites voters to, in one action, vote for all members of a particular party. If the voter accepts that invitation, he or she is done voting, except on non-partisan issues or offices.

Straight-ticket devices are very harmful to independent candidates, because independent candidates are always prevented from having their own device.

Straight-ticket devices probably also harm most minor parties. They cause some of the major party voters to vote without even realizing that, often, their own party doesn’t have a nominee for some races. If these voters had voted separately for each office, and they had come across a race in which their own preferred party doesn’t have a nominee, they might have voted for a minor party against the nominee of the other major party nominee. But the device prevents them from ever noticing.

States that have straight-ticket devices are Alabama, Indiana, Kentucky, Michigan, New Hampshire, New Mexico, North Carolina, Oklahoma, Pennsylvania, South Carolina, Texas, Utah, West Virginia and Wisconsin. Bills to abolish the device were defeated this year in New Hampshire and Oklahoma.

Republican legislators tend to dislike straight-ticket devices, and Democrats prefer them. In 2002, Michigan Democrats even qualified a referendum to save that state’s device. Michigan voters voted to keep it.

On May 25, National Popular Vote had its model bill introduced in New York. It is AB 1220. The same bill had already been introduced in five other states this year.

These bills provide for a compact between the states. When and if states comprising a majority of the electoral college join the compact, it goes into effect. Member states would promise to appoint presidential electors who are pledged to vote for the national popular vote winner.

The California and Louisiana bills have passed all committees in the lower houses. The lower houses of both states will vote on these bills, the first week in June. The Colorado bill, which had passed the State Senate, was defeated in a House committee on May 2. The Illinois and Missouri bills failed to make headway, and those legislatures have now adjourned.

Some people believe that Article One, sec. 10, of the U.S. Constitution requires that Congress approve such an interstate pact. However, in the past, the U.S. Supreme Court has ruled that not all such pacts need congressional approval. For a 70-page discussion, see the vote "Every Vote Equal" by Professor John Koza.

The bill will be introduced in more states during the first week in June, and in most states in 2007.

On April 28, New Hampshire’s Governor signed HB 1125 into law. It gives the Secretary of State total discretion to set the date of the state’s presidential primary, and the candidate qualification deadline.

On May 25, the California Assembly Appropriations Committee defeated AB 2949, which would have set an all-mail presidential primary the first week of January. Under existing California law, the primary is in June.

Iowa: last year the Libertarian and Green Parties sued Iowa over voter registration forms, which force all voters to register either "Republican," "Democratic" or "independent." The state has asked for a meeting to discuss settling the case.

Mississippi: on May 10, a U.S. District Court Judge refused injunctive relief to the Democratic Party. The state uses an open primary and has no registration by parties. Republicans won’t be holding a primary this year, since there are no contests, so Democrats are concerned that Republicans will vote in the Democratic primary. However, they filed the case too close to the June primary, and also failed to produce a realistic plan for deciding how they would know who is a Democrat and who isn’t. Mississippi Democratic Party v Barbour, 4:06-cv-29, Greenville. The party will seek declaratory relief for future primaries.

New York (1): on May 16, Lenora Fulani sued the state chair of the Independence Party in federal court. Earlier this year, the state party had dissolved the party’s county organization in three boroughs of New York city, where Fulani is influential. The lawsuit charges that since New York city is under section five of the Voting Rights Act, the change is void until it is approved by the Justice Department. The suit also challenges ballot access requirements for individuals to get on the primary ballot of small qualified parties. Fulani v MacKay and N.Y. Bd. of Elections, 06-cv-3747, Manhatten. The case was assigned to Judge George Daniels, a Clinton appointee.

New York (2): on May 4, the 2^nd circuit ruled that the federal Voting Rights Act cannot be used to gain the right to vote for felons or ex-felons. Hayden v Pataki, 04-3886.

Pennsylvania: on April 28, the 3^rd circuit struck down a town ordinance that required people who go door-to-door for a political cause to first check in with the police. Service Employees International Union v Mt. Vernon, 04-4646.

Ohio: on May 5, a state court ruled that signatures on initiatives are invalid, if the circulators make a mistake when they identify their employer. A new Ohio law requires paid circulators to fill out a form, identifying their employer. Some of the employees wrote down "American Cancer Society," since that organization is sponsoring the drive. But they should have listed "Arno," the contractor that hires the circulators. In re protest of Evans, 06-ms-0133, Franklin Co. The decision is being appealed.

Rhode Island: on April 26, a U.S. District Court invalidated a state law making it illegal for corporations to donate to campaigns in support of, or to oppose, a ballot measure. The ACLU had filed the case on its own behalf, since it is a corporation. ACLU of R.I. v Begin, 04-487.

Texas: on May 10, independent gubernatorial candidate Carole Strayhorn lost her federal case. She had sued to reverse a decision by the Secretary of State not to use random sampling, when he checks her petition. The laws authorizes random sampling but says it is discretionary. Strayhorn v Williams, A-06-CA-205. Strayhorn claimed a moral victory, since the Secretary of State had first said he would take two months to check her petition, but now says he can do it in a month.

The Republican Party National Committee’s recent decision to hold its national convention in 2008 September 1-4 is risky. Never before in U.S. history has any major party held such a late presidential convention. The chart below shows the dates of the major party national conventions, back to 1856. Note that June was once the most common month for such conventions, and that none had ever been held in September, except that in 2004, the Republicans met partly in August and partly in September.

State laws in at least four states require parties to certify the names of their presidential and vice-presidential by a date that is earlier than September 4.

These states are Alabama, California, Illinois and Montana, and possibly others. Next year, the Republican Party will ask for changes in the deadlines in these states, but there is no guarantee these changes will be made.

A greater risk is that the 2008 Republican presidential primaries may not produce a clear-cut winner. The presidential primary season ends in June. If no single presidential candidate has a majority of pledged delegates, the party will face a strong urge to get the presidential selection settled quickly. Yet, with the convention set for September, the urge for a quick decision may be frustrated.

YEAR	Rep. Dates	Rep. City	Dem. Dates	Dem. City
1856	June 17-19	Philadelphia	June 2-6	Cincinnati
1860	May 16-18	Chicago	June 18-23	Charleston
1864	June 7	Baltimore	Aug 29	Chicago
1868	May 20-22	Chicago	July 4-11	New York
1872	June 5-6	Philadelphia	July 9-10	Baltimore
1876	June 14-16	Cincinnati	June 27-29	St. Louis
1880	June 2-5	Chicago	June 22-25	Cincinnati
1884	June 3-6	Chicago	July 8-11	Chicago
1888	June 19-25	Chicago	June 5-7	St. Louis
1892	June 7-10	Minneapolis	June 21-23	Chicago
1896	June 16-18	St. Louis	July 7-11	Chicago
1900	June 19-21	Philadelphia	July 4-6	Chicago
1904	June 21-23	Chicago	July 6-9	St. Louis
1908	June 16-19	Chicago	July 8-10	Denver
1912	June 18-22	Chicago	June 25-29	Baltimore
1916	June 7-10	Chicago	June 14-16	St. Louis
1920	June 8-12	Chicago	July 1-6	San Francisco
1924	June 10-12	Cleveland	June 24-July 9	New York
1928	June 12-15	Kansas City	June 26-29	Houston
1932	June 14-16	Chicago	June 27-29	Chicago
1936	June 9-12	Cleveland	June 23-27	Philadelphia
1940	June 25-28	Chicago	July 15-18	Chicago
1944	June 26-28	Chicago	July 19-21	Chicago
1948	June 21-25	Philadelphia	July 12-14	Philadelphia
1952	July 7-11	Chicago	July 21-26	Chicago
1956	Aug 20-23	San Francisco	Aug 13-16	Chicago
1960	July 25-28	Chicago	July 11-14	Los Angeles
1964	July 13-16	San Francisco	Aug 24-27	Atlantic City
1968	Aug 5-8	Miami Beach	Aug 26-29	Chicago
1972	Aug 21-23	Miami Beach	July 10-14	Miami Beach
1976	Aug 15-19	Kansas City	July 12-15	New York
1980	July 14-17	Detroit	Aug 11-14	New York
1984	Aug 20-23	Dallas	July 16-20	San Francisco
1988	Aug 15-18	New Orleans	July 18-21	Atlanta
1992	Aug 17-20	Houston	July 13-16	New York
1996	Aug 12-15	San Diego	Aug 26-29	Chicago
2000	July 31-Aug 3	Philadelphia	Aug 13-16	Los Angeles
2004	Aug 30-Sep 2	New York	July 26-29	Boston
2008	Sep 1-4	??	Aug 25-28	??

On May 11, Congressmember Tom Davis (R-Va.) introduced HR 5388, to give the District of Columbia a permanent voting member of the U.S. House of Representatives, and also to give Utah an additional at-large seat in the U.S. House between now and 2011. Since Davis chairs the committee that will hear the bill, the bill is likely to reach the floor of the House. Utah would get a seat because, of all states, it is closest to deserving another seat.

On May 24, the Senate came close to adding an amendment to the Immigration Reform bill that would require the states to pass laws, mandating that no one vote at the polls without showing a government-issued photo ID. U.S. Senator Mitch McConnell introduced the amendment. A roll-call vote to table his motion was defeated, 49-48. All Democrats who were present, voted against the ID requirement. All the Republicans who were present, voted for it, except for the two Ohio Senators (George Voinovich and Mike DeWine), and Senator John Sununu of New Hampshire, and Senator Lincoln Chafee of Rhode Island.

Later in the day, though, another vote stripped away all "non-germane" amendments, so the Voter ID amendment did not pass. It is possible that when the House gets this bill, the provision will be restored.

In late 2005, the University of Michigan Press published Three’s A Crowd: The Dynamic of Third Parties, Ross Perot, and Republican Resurgence. The authors are political scientists Ronald B. Rapoport and Walter J. Stone.

This is more than just a book. It is the result of the largest study ever made of the activists of any third party movement in the United States, a study that has been going on for the last fourteen years, and is still not completely finished.

Rapoport, Stone, and more than 30 political science graduate students working with them, were given permission to examine some of Ross Perot’s 1992 campaign records. Specifically, the authors enjoyed access to the list of names and contact information for the 500,000 individuals who contacted the Perot campaign in 1992 and wanted to volunteer. The project selected approximately 1,500 such individuals randomly, gained their cooperation, and then interviewed them, not only in 1992, but in 1994, 1996, 2000 and 2004.

The book is not just a study of the Perot movement. It is a study of what happened to the individuals who became energized by the Perot movement, and what political activity they have engaged in ever since 1992.

The study also examined how the two major parties reacted to the Perot movement. It shows that in 1993 and 1994, the Republican Party made a massive effort to convert Perot supporters to the Republican cause. The book, using a great amount of data, beyond the interviews, concludes that the Republican sweep of Congress in 1994 would not have occurred without the Perot movement. The book specifically concludes, "Had Perot not run in 1992, Republicans would have picked up only fourteen seats, and the Democrats would have maintained their majority in the House."

The Republicans lost quite a few House seats in 1996. The book shows that Republicans who captured Democratic seats in 1994 were far more likely to be re-elected in 1996 if they supported the Perot agenda during their first terms.

One might think that voters who voted for Perot in 1992 were naturally the type of people who would have voted Republican for Congress in 1994 anyway. The books rebuts this idea. The individuals who worked for Perot in 1992 were personally changed by their experience. "These results show that if there had been no Perot campaign in 1992, there would have been nothing to engage the energies of volunteers, stimulate their commitment to the cause, and sensitize them to the stakes in future political conflicts (page 227)."

It is easy to forget that the Republican victory in the 1994 mid-term elections, which ended 40 years of Democratic control of the House, was unexpected. It is also easy to forget that the 1994 Republican campaign, built on the "Contract with America," was designed to appeal to the Perot movement. The "Contract with America" supported congressional term limits, term limits for committee chairs in Congress, and an end to labor laws that excluded congress itself from its provisions.

The book concludes, "The logic of third parties compels us to recognize that they, too, are an integral part of the American two-party system…Movements such as Perot’s can have an enduring impact on the two-party system, compelling it to respond to interests and forces to which it might otherwise be inattentive (pp. 238-239)." The book is a welcome sign of renewed interest in third parties and independent candidates among political scientists. It is surely the most important political science book on U.S. third parties since 1984, when three political scientists published Third Parties in America.

Three’s a Crowd sells new for $29.95 from the publisher.

There are other signs that mainstream journalists and thinkers are interested in political activity outside the two major parties. On May 3, the New York Times columnist Thomas L. Friedman advocated that a new party with a thoughtful energy policy would help the nation.

The most recent issue of the Yale Law Journal has an article, criticizing restrictive ballot access laws. The article, by Robert Yablon, focuses on petition validation procedures that create problems for the candidates who must circulate such petitions.

Law Professor James A. Gardner has written a lengthy article called "Deliberation or Tabulation? The Self-Undermining Constitutional Architecture of Election Campaigns." Gardner is with State University of New York, Buffalo Law School. The article is not yet in print, but should be soon. It points out that election campaigns, according to general opinion, are for the exchange of ideas. Yet, ballot access laws, and restrictive debate rules, and federal campaign finance laws, make it very difficult for candidates with new (and therefore, unpopular) ideas to be heard. He asks the nation to face up to the contradiction.

New York Magazine of April 24 had an article, "Introducing the Purple Party," which makes the case for a new major party.

Meanwhile, Democratic and Republican primaries in the spring of 2006 are recording even lower levels of voter turnout than was the case in 2002 and 1998, and those years also had poor turnout. The next issue of Ballot Access News will document this, and will carry registration data.

The July 1 issue will carry the normal petitioning chart. The Green and Libertarian Parties of Ohio appear to have placed their gubernatorial nominees on the ballot this year.

On April 4, the voters of Douglas County, Wisconsin, elected Adam Ritscher to the County Board of Supervisors, 6^th district. The election is non-partisan. Furthermore, Wisconsin does not have registration by party. However, Ritscher is a member of the Socialist Action Party. That party was created in the early 1980’s, by former members of the Socialist Workers Party who had been expelled.

Socialist Action has run other candidates for non-partisan office, but has never run candidates in a partisan race. For more about the group, see socialistaction.org.

Ritscher was unopposed. The Douglas County Board of Supervisors has 28 members, each elected from a district.

This year’s struggle for the New York Republican Party gubernatorial nomination is between former Massachusetts Governor William Weld, and former State Assemblyman John Faso. There will almost certainly be a September primary to choose one of them.

Each candidate has already received the nomination, or the virtual nomination, of a minor party. Weld received the Libertarian nomination on April 29, and Faso received the formal endorsement of the Conservative Party on May 23. Each one promises "his" minor party that he will remain in the November race, no matter which way the Republican primary is decided. The winner of the Republican primary will, of course, be listed on the ballot twice, once as a Republican and once as the nominee of a minor party.

Pat LaMarche, Green Party gubernatorial candidate in Maine, appears to have qualified for $1,400,000 in public campaign funding. In 2002, the Green Party gubernatorial nominee received $900,000 in such funds. He used most of the money for TV advertising, and polled over 9%.

The Working Families Party, ballot-qualified in New York since 1998, has been working in a handful of states this year to qualify in other states. It submitted its party petition in South Carolina on the legal deadline of May 6. However, the Election Commission told the party that it is too late for it to nominate any candidates this year.

The South Carolina Election Commission behaved the same way in 1996, when the Natural Law Party turned in its petition. The Election Commission says all parties, even new parties, must have been holding precinct and county meetings earlier than May, even though the law says the petition deadline is in May.

In 1996, the Natural Law Party sued South Carolina in federal court. The state gave in, and let the party hold its meetings on its own schedule. The party’s nominees for U.S. Senate and U.S. House appeared on the ballot in all districts. Now, however, the Election Commission is ignoring the 1996 precedent. The Working Families Party has not decided whether to take legal action or not. If it does nothing, it will still be a qualified party in 2008.

Working Families is also finished qualifying in Delaware, and getting close in Oregon. In California, the paperwork has been filed for the party to get a tally of how many registered voters it has; if it increases its registration to 1% of the gubernatorial vote by January 2008, it will be ballot-qualified in California for 2008 and 2010.

The Labor Party had also been circulating a petition in South Carolina, but it has not submitted them yet, and will make no attempt to qualify in time for this year’s election.

Two strong independent candidates for Governor of Texas, Carole Strayhorn and Kinky Friedman, submitted petitions during the middle of May. Strayhorn turned in 228,000; Friedman turned in 169,000. Each needed 45,253.

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