ACLU SUES NEW MEXICO ON BALLOT ACCESS

SECOND ACLU BALLOT ACCESS LAWSUIT THIS YEAR

The American Civil Liberties Union filed a ballot access lawsuit against New Mexico on July 11. Libertarian Party of New Mexico v Vigil-Giron, 06-615. This is the second ballot access case the ACLU has filed recently; the first one was filed in June against Arkansas. The case was assigned to U.S. District Court Judge Martha Vazquez, a Clinton appointee.

New Mexico law says a qualified minor party must submit petitions (signed by 1% of the last vote cast) for each of its nominees. New Mexico is the only state that requires one petition to qualify the party, and then separate petitions for each nominee. New Mexico has required "double petitioning" since 1979, and no one had ever before sued to overturn it.

Since the Libertarian Party has three statewide nominees, and each statewide nominee needs 7,564 signatures, the law requires another 22,692 total signatures for the candidates actually nominated. And if the Libertarian Party were running a full slate of candidates for all federal and state offices up this year, it would need 75,640 valid signatures. Furthermore, if the party had lots of candidates for District Judge (a partisan office) it would need thousands more; and if it had candidates for all partisan county offices, it would need tens of thousands more.

This calculation is based on the fact that in 2006, New Mexico elects a U.S. Senator, Governor, Secretary of State, Auditor, Treasurer, Attorney General, Land Commissioner, U.S. House members, state representatives, and (in half the state) Education Commissioners and Public Regulation Commissioners.

This massive amount of signatures (over 100,000) would be in addition on the petition to qualify the party.

That petition required 3,782 signatures. The party turned in 7,400 to meet that requirement last November, and it took the state more than three months to check that petition. One wonders how the state would cope if a party turned in approximately 200,000 signatures to run a full slate of candidates for all partisan offices this year.

New Mexico does not have the initiative, so election officials are not accustomed to validating large numbers of petition signatures.

New Mexico’s law, for a new party with a full slate, would mean that circulators would be asking voters to sign and print their names, and print their addresses, on twenty different pieces of paper!

The only other state that requires the nominees of a qualified party to submit petitions is Pennsylvania. Pennsylvania’s law on this subject was upheld in U.S. District Court, and that case is now pending in the 3^rd Circuit. However, at least Pennsylvania does not require a group to submit one petition to become a qualified party, followed by separate petitions for its nominees. Pennsylvania has no petition to create a new party. Instead, all Pennsylvania has are candidate petitions, and one petition can contain multiple nominees.

On June 25, the North Carolina legislature passed House Bill 88. It lowers the number of votes needed for a party to remain on the ballot, from 10% for president or Governor, to 2%. It also lowers the number of signatures needed for a statewide independent, from 2% of the registered voters, to 2% of the last vote cast. But it also imposes filing fees on candidates nominated by convention or by petition.

On July 6, the ACLU of Connecticut filed a lawsuit in federal court, alleging that Connecticut’s new public funding law is unconstitutional because it discriminates against candidates who aren’t Democrats and Republicans. Green Party of Connecticut v Garfield, 3:06cv-1030.

Connecticut’s public funding law, passed late in 2005, holds itself out as another "clean elections" law. "Clean elections" laws, pioneered in Maine, Massachusetts and Arizona, provide that candidates who receive a substantial number of $5 contributions then qualify for public funding. But until Connecticut’s law came into existence, all of the "clean elections" laws did not discriminate on the basis of the candidate’s partisan affiliation.

Connecticut’s legislature ignored the example of the other "clean elections" states, and provided that even if a candidate (who is not a Democrat or a Republican) qualifies, he or she still can’t receive equal public funding without submitting a petition signed by 20% of the voters.

In 1980, the ACLU won a case against a federal law that provided for cheaper postage rates for the Democratic and Republican Parties than for all other parties. Greenberg v Bolger, 497 F.Supp. 756 (U.S. Dist. Ct., E.D.N.Y.). The U.S. District Court decision was so persuasive, the federal government did not appeal.

The Connecticut case will move slowly, since the law doesn’t take effect until 2008. The first brief isn’t due until October. The lawsuit also challenges the part of the law that makes it illegal for any lobbyist, or any state contractor, or their families, to make campaign contributions.

On June 8, U.S. District Court Judge Frederick Martone upheld two Arizona ballot access laws. Nader v Brewer, 04-1699.

The June 9, 2004 petition deadline for independent presidential candidates was upheld, as well as the law making it illegal for out-of-state residents to circulate such petitions in Arizona. Nader is appealing to the 9^th circuit.

The basis for Nader’s challenge to the early June petition deadline was the U.S. Supreme Court decision Anderson v Celebrezze, issued in 1983. It said early independent and minor party presidential petition deadlines are unconstitutional, for three reasons: (1) early deadlines for the "outsiders" to decide whether to run, and whom to run, before the major party tickets are known, put them at a competitive disadvantage (p. 791); (2) it is difficult to petition while the public is not yet interested (p. 792); (3) early petition deadlines can damage the harmony of the two major parties, by motivating dissident groups within the major parties to bolt prematurely, instead of remaining to fight an intra-party battle (p. 805).

Between 1984 and 2001, whenever a petition deadline involving a minor party or independent presidential candidate was tested in court, that deadline was always invalidated if it was earlier than mid-July. According to all those precedents, the Arizona petition should have been invalidated. It is the second earliest in the nation (after the Texas deadline).

But Judge Martone declined to follow other precedents that had said June is too early. He said, "The presidential process has changed since Anderson was decided more than 20 years ago. In 2004, ten states held their primary elections on ‘Super Tuesday,’ which fell on March 2^nd. Arizona’s presidential preference election was held on February 3^rd, well before the June filing deadline…thus, many of the concerns raised in Anderson do not have the same significance today."

The system has not changed very much since 1983. Even then, the identity of the major party presidential nominees was known by March or April. The New York Times index has these 1980 entries for the Republican presidential nomination: "Consensus among influential Republicans is that Ex-President Ford’s decision not to run has removed the main obstacle to Ronald Reagan’s nomination." (March 17, 1980). Another index entry is "Ronald Reagan appears virtually impossible to beat for the Republican nomination following his victory in Illinois." (March 20).

Two entries for the Democratic race are "Carter now has 1,136 of the 1,666 needed; Kennedy 593," and "Bob Strauss says Carter’s re-nomination is a virtual certainty." (both dated April 24).

Thus, the probable major party nominees were already known by April 24, 1980, and the U.S. Supreme Court understood that when it issued Anderson v Celebrezze in 1983. In recent presidential elections, the identity of the major party presidential nominees has been known by mid-March. Yet the party platforms and the identity of the vice-presidential nominees, then and now, are never known until July or August (except that the identity of the vice-presidential nominee is known earlier if the president and vice-president are running for re-election).

Furthermore, just because the identity of the major party presidential nominees has been known by March, in recent years, does not guarantee that it will always be that way. If one major contender wins some of the early presidential primaries, but another major contender wins others, it could very well be that the identity of the nominee would not be settled until the last round of primaries (which are held in the first week of June), or even until the national convention itself.

Judge Martone also said the state needs to have the deadline in early June, to give it time to determine if the petition is valid. Yet logic disproves this argument.

Arizona requires candidates running in its September primary to submit petitions, and requires those petitions to be submitted 90 days before the primary. If Arizona can cope with the burden of checking primary petitions, with a 90-day deadline, then obviously it can cope with a 90-day deadline for general election petitions. A 90-day deadline for independents would be in August.

Judge Martone upheld the restriction barring out-of-stater petitioners by saying that if fraud has been committed, the state needs to be able to interview the circulator, and if the circulator has left Arizona, that may be impossible. This is not a valid argument. A state can determine if signatures are valid or invalid, without interviewing the circulator. Forgeries can be detected by comparing the signature on the petition with the signature on the voter registration record. Or, if necessary, the alleged signer can be interviewed.

Judge Martone, a Bush, Jr., appointee, said nothing about the fact that no independent presidential candidate has been able to qualify in Arizona since 1992. Back in 1992, the Arizona independent petition deadline was in September. It was moved to June in 1993.

Two court hearings were held in July in important ballot access cases. Both seemed to go very well, but it is dangerous to use oral argument to predict the outcome. The New Hampshire Supreme Court heard Libertarian Party v State, 2005-606, on July 21. The main issue is the state’s definition of "party," a group that polled 4% for Governor or U.S. Senator at the last election. New Hampshire is the only New England state that has not had any qualified third parties during the past ten years.

The Third Circuit heard Rogers v Cortes, 06-2241, on July 10. At issue is Pennsylvania’s law, treating the qualified minor parties as though they aren’t qualified, for ballot access purposes.

Alabama: after the legislature went home this year, someone noticed that HB 51 (which had been signed into law) accidentally moved the state’s primary for office other than president from June to February. The intent of the bill had been to move only the presidential primary from June to February. Since the petition for minor parties and for non-presidential independent candidates is on primary day, the error also moves the petition deadline from June to February. Presumably, the legislature will fix the error in 2007.

California: several bills would make it harder for initiatives to get on the ballot. SB 1047 and AB 2946 would outlaw paying per signature. AB 2459 would implement a duration of residency requirement for circulators who aren’t registered to vote. SB 1598 would require petitions to say if the circulators are being paid. None of these bills has passed yet. Similar bills passed in the past have been vetoed by Governor Schwarzenegger.

Delaware: HB 10, which would have banned fusion, failed to pass and the legislature has now adjourned.

Ohio: on July 27, Representative Jim Trakas introduced HB 638, to let candidates who use the independent petition procedure, choose a partisan label. The label would be carried on the petition and be printed on the November ballot next to the candidate’s name. Since the Ohio petitions for independent candidates are far easier than for new parties, this bill would help minor parties.

Pennsylvania: on June 22, HB 2830 was introduced. It would set a cap on the number of signatures needed on minor party and independent statewide petitions of 45,000. Also pending in Pennsylvania is HB 544, which would move the petition deadline from August 1 to early July.

Rhode Island: on July 12, the Governor vetoed HB 8022. It would not have changed the voting age, but it would have let 16-year-olds register, so that when they turned 18, they would already be on the rolls.

South Carolina: H4331, which would have banned fusion, failed to pass, and the legislature has gone home for the year.

Tennessee: on June 28, the Governor signed SB 407. It makes it far more difficult for anyone to win a party nomination in a primary by write-in votes. The old law required the write-in candidate to poll 5% of the number of voters who voted in that primary, but the new law requires 5% of the number of registered voters.

Washington: Two state representatives from Olympia, Brendan Williams and Sam Hunt, will introduce a bill next year easing the requirements for minor party and independent candidates for the U.S. House. Current law, passed in 2004, requires 1,000 signatures to be collected in a short time-span. The law before 2004 only required 25 signatures.

Bill Scheurer, candidate of the Moderate Party for U.S. House, Illinois 8^th district, is now safely on the November ballot. Ballot access for U.S. House in Illinois is very difficult. A petition of 5% of the last vote cast is required. Only Georgia has a harder requirement for minor party candidates for the U.S. House. Scheurer is the only minor party or independent candidate who successfully petitioned in Illinois this year, for U.S. House.

Scheurer needed 13,950 valid signatures. He failed to collect that many, because an individual who had contracted to collect 5,000 signatures for payment, and who had said that he had collected the signatures, had actually fraudulently tricked Scheurer, and had not collected any. The individual has ties to the Democratic Party. On June 29, Scheurer sued the Democratic National Committee for fraud, but in a surprise, no one challenged his signatures. In Illinois, a candidate can be on the ballot even if he or she fails to turn in the required number, if no one challenges. Scheurer, of course, then dropped his lawsuit, which had been filed in federal court. Moderate Party v Democratic Congressional Campaign Committee, 06-3532, n.d.

At least three cities, and one county, are asking the voters this November if they wish to use the system for local elections. Those jurisdictions are Pierce County, Washington; Minneapolis; Oakland, California; and Davis, California. And on July 27, the North Carolina legislature passed HB 1024, to let ten cities and ten counties experiment with IRV during 2007 and 2008.

On July 24, the Delaware Attorney General ruled that fusion is legal between a major party and a minor party. This reverses a 1994 ruling that said it is not legal.

On July 3, a lower state court upheld Oklahoma’s ballot access law for new parties, a petition signed by 5% of the last vote cast. Libertarian Political Organization v Clingman, 2004-2949. The decision was no surprise, since Judge Bryan Dixon had denied injunctive relief in 2004. His decision is only one sentence long. The case now goes to the State Court of Appeals. The Coalition for Free & Open Elections (COFOE) paid the $400 appeal fee. COFOE has no income, other than the generous contributions of its members. COFOE thanks everyone who has contributed to COFOE.

Nebraska: on June 29, U.S. District Court Judge Richard Kopf issued an injunction requiring certain cities to let petitioners work in public parks, even if the park had been "rented out" to a private group for that day. Groene v Seng, 4:06-cv-3153.

New York: on July 20, a state court ruled that a law forbidding a political party from spending any money, campaigning for or against a candidate in a primary, is unconstitutional. Avella v Batt, 3^rd dist., no. 98847. On July 25, a federal court also struck down that law. Kermani v Bd. of Elections, 1:06-cv-589, n.d.

The National Popular Vote plan, a plausible method to eventually eliminate the electoral college, continues to get noticed. Commonweal Magazine published a story on its web page on July 25. The San Francisco Chronicle carried a lengthy story about the idea on July 24. The Orange County (Cal.) Register attacked the idea in an editorial of July 17, "Doing the Devil’s Work in Sacramento." The paper carried a letter to the editor by Assemblyman Tom Umberg, rebutting the editorial, on July 24.

The California bill to implement the plan, AB 2948, will probably have passed the legislature by mid-August, so publicity is greater in California than in most other states.

Two important books published this year have mentioned the plan. Taming the Electoral College, by Law Professor Robert W. Bennett (Stanford University Press) has Chapter Ten, titled "Popular Election of the President Without a Constitutional Amendment." The book explains the idea, and also notes that Bennett himself had first presented the idea at a conference in January 2001. The organization working for the plan has acknowledged that Bennett originated the idea.

Ten Steps to Repair American Democracy, by Steven Hill (PoliPoint Press), not only discusses the idea, but publicizes the organization that is fighting for the idea, and gives an account of its experience so far. See NnationalPopularVote.com for more about the organization described in Hill’s book.

Both books are well worth reading, although Hill’s book is somewhat disappointing for not mentioning ballot access reform among his suggestions for election improvement. However, the book’s chapter on public funding is outstanding. Ten Steps to Repair American Democracy currently sells for $8.80.

Bennett’s book on the electoral college is the best book on this subject in years, if not ever. It is the only recent book on the electoral college that does not have a factually erroneous list of "faithless electors." Furthermore, the book is astonishingly fair to both sides in the electoral college debate. Bennett is clearly more interested in scholarship than he is in persuading the reader to one point of view about the electoral college. Taming the Electoral College sells for $21.95.

`	Demo.	Rep.	Green	Lib’t.	Indpnce	Constit.	Unity	Personal Ch.
Alabama	5,262	7,201	- -	2	- -	- -	- -	- -
Arizona	24,612	15,726	- -	2,125	- -	- -	- -	- -
Idaho	31,979	34,352	- -	2,731	- -	4,269	841	- -
Iowa	51,745	39,478	- -	- -	- -	- -	- -	- -
Kentucky	129,282	125,352	- -	- -	- -	- -	- -	- -
Maine	12,233	4,525	4,883	- -	- -	- -	- -	- -
Minn.	292,374	228,010	42,448	- -	37,846	- -	- -	- -
N. Mex.	2,262	1,623	69
No. Car.	105,001	80,070	- -	- -	- -	- -	- -	- -
Ohio.	177,959	177,959	- -	- -	- -	- -	- -	- -
Rhode I.	8,214	4,938	466	- -	- -	- -	- -	- -
Utah	42,732	69,958	2,568	2,426	- -	1,578	- -	6,668
Virginia	32,290	17,001	- -	- -	- -	- -	- -	- -
TOTAL	915,945	806,193	50,434	7,282	37,846	5,847	841	6,668

The states above give state income-tax payers a chance to direct a contribution to the political party of the taxpayer’s choice. The chart above lists the amounts received by each party. Ohio does not let taxpayers decide which party to help, and only lets taxpayers help parties that polled 20%. All the other states except North Carolina include all qualified parties. Minnesota also includes unqualified parties that polled at least 1% of the vote for a statewide office. All data is for 2005 tax returns, except for New Mexico, which doesn’t have the data yet, so New Mexico entries are the 2004 tax returns. A year ago, the national amounts were: Dem. $750,461; Rep. $714,238; Green $18,100; Lib’t. $5,546; Constitution $2,442, other parties $25,921.

STATE	REQUIREMENTS		SIGNATURES COLLECTED					Deadline
	FULL PARTY	CAND	LIB'T	GREEN	CONSTI	WK FAM	SWP
Alabama	41,012	41,012	too late	too late	too late	too late	too late	in court
Alaska	(reg) 9,258	#3,128	already on	already on	0	0	0	Aug. 22
Ariz.	26,835	est. #20,000	already on	too late	too late	too late	too late	June 14
Arkansas	10,000	10,000	1,000	in court	0	0	0	unclear
Calif.	(reg) 77,389	165,573	already on	already on	already on	0	0	Aug. 11
Colorado	(reg) 1,000	#1,000	already on	already on	already on	*too late	*too late	July 10
Connecticut	no procedure	#7,500	already on	*11,500	already on	0	0	Aug. 9
Delaware	(reg) *259	*5,180	already on	already on	already on	*finished	already on	Aug. 1
D.C.	no procedure	* #3,000	0	already on	0	0	*500	Aug. 30
Florida	be organized	pay fee	already on	already on	already on	0	already on	July 18
Georgia	42,676	#42,676	already on	*too late	*too late	*too late	*too late	July 11
Hawaii	648	25	already on	already on	*too late	*too late	*too late	July 25
Idaho	11,968	5,984	already on	0	already on	0	0	Aug. 31
Illinois	no procedure	#25,000	too late	finished	too late	too late	too late	June 26
Indiana	no procedure	#29,553	already on	too late	too late	too late	too late	June 30
Iowa	no procedure	#1,500	*350	*1,600	0	0	0	Aug. 18
Kansas	16,477	5,000	already on	*too late	*too late	*too late	*too late	July 31
Kentucky	no procedure	#2,400	*1,400	0	0	0	0	Aug. 8
La.	(reg) 1,000	pay fee	already on	already on	47	0	22	Sep. 7
Maine	24,798	#4,000	too late	already on	too late	too late	too late	May 25
Maryland	10,000	*30,889	already on	already on	already on	0	0	Aug. 7
Mass.	est. (reg) 41,000	#10,000	*too late	*finished	*too late	*finished	*too late	Aug. 1
Michigan	31,731	31,731	already on	already on	already on	*too late	*too late	July 20
Minnesota	141,420	#2,000	*already on	*already on	*already on	*too late	*too late	July 18
Mississippi	be organized	1,000	already on	already on	already on	*too late	*too late	April 7
Missouri	10,000	10,000	already on	*finished	*too late	*too late	*too late	July 31
Montana	5,000	#5,000	already on	too late	already on	*too late	*too late	May 30
Nebraska	4,735	2,500	300	*finished	already on	0	0	Aug. 29
Nevada	7,915	7,915	already on	already on	already on	*too late	*too late	July 7
New Hamp.	20,299	#3,000	*2,900	0	0	0	0	Aug. 9
New Jersey	no procedure	#800	already on	0	0	0	already on	June 6
New Mex.	3,782	14,079	already on	already on	already on	*too late	*too late	July 11
New York	no procedure	#15,000	*8,000	*10,000	*0	already on	*10,000	Aug. 22
No. Car.	69,734	law is void	in court	in court	*too late	*too late	*too late	June 30
No. Dakota	7,000	1,000	0	0	0	0	0	Sep. 8
Ohio	56,280	5,000	*already on	*already on	too late	too late	too late	May 1
Oklahoma	73,188	pay fee	in court	too late	too late	too late	too late	June 21
Oregon	18,381	18,356	already on	already on	already on	*already on	0	Aug. 29
Penn.	no procedure	#67,070	in court	in court	in court	*too late	*too late	Aug. 1
Rhode Isl.	21,815	#1,000	*too late	*too late	*too late	*too late	*too late	July 20
So. Caro.	10,000	10,000	already on	already on	already on	disputed	*too late	July 15
So. Dakota	8,364	#3,346	already on	*too late	already on	*too late	*too late	June 6
Tennessee	41,314	25	too late	already on	too late	too late	too late	April 6
Texas	45,253	45,253	already on	too late	too late	too late	too late	May 30
Utah	2,000	#1,000	already on	already on	already on	too late	too late	Mar. 17
Vermont	be organized	#1,000	already on	already on	0	0	0	Sep. 21
Virginia	no procedure	#10,000	too late	already on	too late	too late	too late	June 13
Washington	no procedure	#1,000	*already on	*already on	*too late	*too late	*too late	July 7
West Va.	no procedure	#8,724	too late	too late	too late	too late	too late	May 8
Wisconsin	10,000	#2,000	already on	already on	already on	*too late	*too late	July 11
Wyoming	4,774	4,774	already on	0	0	0	0	Aug. 28
TOTAL STATES ON			*32	*24	*19	*2	3	`

Two states (Ky., N.C.) have no statewide race.
*change since July 1 chart.
#partisan label is permitted (other than "indp.").
"Deadline" is procedure with latest deadline.
"Wk Fam" = "Working Families Party."
"SWP" = Socialist Workers Party.

The Florida Reform Party nominated Max Linn for Governor on June 23, after interviewing him. Linn is a well-known political figure in Florida. Long ago, he had been a fundraiser for the Republican Party. He also led the fight to preserve Florida’s legislative term limits during the last few years.

Linn, who is wealthier than anyone else running for Governor of Florida this year, switched his registration from "Republican" to "Reform" on May 3. He then sought the Reform Party’s gubernatorial nomination, which the party gladly bestowed on him. Linn then persuaded Russ Verney to be Operations Manager for the campaign, and also hired Doug Friedline to be Campaign Manager. Verney was Ross Perot’s campaign manager in 1992 and 1996, and Friedline was Jesse Ventura’s campaign manager in 1998.

Linn, Verney and Friedline attended the Florida Democratic Party state convention on July 22. The highlight of that convention was a debate between the two leading Democratic contenders for Governor (the Florida primary is in September, so the Democratic Party has not yet chosen its gubernatorial nominee). As the convention was winding down, the previous speaker stepped away from the podium, but no one stepped forward to speak, or to conclude the meeting. So Linn, on an impulse, stepped up to the podium. No one objected. Without identifying himself, he said that surely everyone remembers that Ross Perot’s entry into the presidential race in 1992 made it much easier for Bill Clinton to win that race. The audience cheered. Linn then announced that Russ Verney, Perot’s campaign manager, was in the audience, and asked Verney to stand. The audience cheered again.

Then, Linn identified himself as the Reform Party nominee for Governor. The mike promptly went dead, and party leaders began shooing the audience out of the meeting hall, indicating the meeting was over. Reporters in attendance, of course, then rushed to interview Linn, although only the Tampa Tribune mentioned Linn’s humorous attempt to introduce himself to Florida Democrats.

On July 11, the Labor Party submitted 16,500 signatures to be a qualified party in South Carolina for 2007 and 2008. If the petition has 10,000 valid names, the party will be on the ballot. The petition checking process should be done by August 11. The Labor Party was organized in 1990, but until this year, it had never tried to qualify itself for the ballot in any state. The party has the support of the South Carolina AFL-CIO.

Official figures from the California primary of June 6, 2006, confirm that the only Green Party member in the statewide race for Superintendent of Public Instruction outpolled the only Republican in that race. Sarah Knopp, the Green, placed second with 17.21% of the vote. The only Republican in the race, Diane Lenning, polled 14.19%. Three Democrats split the remainder of the vote. Superintendent of Public Instruction is a non-partisan race.

On July 11, U.S. Senator Joseph Lieberman (who had already said he would circulate petitions to get on the ballot as an independent), said that his ballot label will be "Connecticut for Lieberman." If he loses the Democratic primary on August 8, he will submit 7,500 signatures on the August 9, using that label. If he goes ahead with the independent run, the "Connecticut for Lieberman Party" would then be a qualified minor party in that state, for purposes of running a U.S. Senate nominee in 2010. Also, election officials would then keep a tally of how many registered voters that party has, for the next four years.

On July 7, Frank Zeidler died at the age of 93. He had been the Socialist Party’s presidential nominee in 1976. He had also been the Mayor of Milwaukee, 1948-1960.

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