VIRGINIA REPUBLICANS WIN OPEN PRIMARY LAWSUIT

On December 1, a federal court ruled that when Virginia requires the Republican Party to nominate by primary, the U.S. Constitution lets the party exclude non-members. Miller v Brown, 3:05cv-266, e.d. The ruling is the first one that open primaries are unconstitutional if a party objects.

The U.S. Supreme Court had ruled in 2000 that blanket primaries are unconstitutional, if a party doesn’t like them. That case was called California Democratic Party v Jones. The vote had been 7-2. The dissenters at the U.S. Supreme Court had warned that under the majority’s holding, open primaries (which are far more common that blanket primaries) were also likely to be thrown out if a political party didn’t like them.

Virginia is appealing to the 4^th circuit. The decision was by Judge Henry Hudson, a Bush, Jr. appointee. The hearing had been on November 16, 2006; the decision was released only two weeks later.

Since Virginia doesn’t have registration by party, the Republican Party had devised a bylaw to determine who is a party member. Anyone is a member who has not voted in the Democratic primary for the past five years. Alternatively, someone who did vote in the Democratic primary during the last five years can also be considered a member if he or she signs a statement of membership.

Judge Hudson also ruled that when the state does not require the party to nominate by primary, and yet the party voluntarily chooses to nominate by primary, then the party must accept an open primary. Virginia law generally gives parties the right to choose whether to nominate by primary or by some type of meeting. But, Virginia law also says that when the party has an incumbent legislator (state or congressional), the legislator, not the party, decides how the party will nominate.

In this particular case, which involves only the 11^th State Senate district, the Republican incumbent has already signed a form insisting that the party use a primary. Therefore, in 2007, the party has a right to a closed primary in the 11^th district, unless the decision is overturned.

The only other states that give major parties the right to decide whether to nominate by primary or by some type of meeting are South Carolina and Alabama.

The Virginia ruling, if sustained on appeal, will make it somewhat easier for the Mississippi Democratic Party to win its case against the open primary law. That case is Mississippi Democratic Party v Barbour, and it has a trial set for July 30, 2007.

Although this was not a decision about ballot access, it has good implications for ballot access. Every time a political party wins a court precedent, giving itself more autonomy, that is also a good precedent for ballot access. Some states make it difficult for even ballot-qualified parties to nominate candidates. For example, Maine, Massachusetts and New York make it difficult for individual members of a qualified party (especially a party without a large number of registrants) to get on the primary ballot. New Mexico and Pennsylvania require the nominees of certain qualified parties to submit petitions for themselves. California, Illinois, Maine, and Wisconsin, makes it very difficult for parties to nominate candidates by write-in vote at their own primaries. North Dakota invalidates the primary nominations of parties if too few voters vote in that party’s primary.

To the extent that the courts continue giving political parties control over the process by which they nominate candidates, lawsuits against those types of ballot access barriers are also more likely to win.

On December 21, a 3-judge U.S. District Court in Washington, D.C., ruled that part of the McCain-Feingold campaign finance law is unconstitutional when it is applied in certain situations. Wisconsin Right to Life v FEC, cv 04-1260. The vote was 2-1.

The law makes it illegal for almost any corporation to run broadcast ads paid for out of the corporate treasury, if the ads are run within 60 days of a congressional election and the ad mentions anyone who is running for Congress. The court said that the law is unconstitutional when it bars an ad that is not advocating or even hinting how voters should vote.

Although the U.S. Supreme Court had upheld the law in 2003, at that time the Court had said that just because the law is constitutional on its face, doesn’t mean that it is constitutional in all situations.

The ruling has implications for new and minor parties. Another part of the McCain-Feingold law makes it illegal for individuals to give large amounts of money to political parties that run candidates for federal office. The Libertarian Party had challenged that law, as applied to new or small parties. The U.S. Supreme Court in 2003 had said that perhaps the restriction is unconstitutional, in the case of new or small parties, but that any such party should bring an "as applied" lawsuit some day in the future when it has specific evidence.

Since Wisconsin Right to Life has now won one of these potential "as-applied" lawsuits, the idea that other future "as applied" lawsuits can also be won is now plausible. It is considered certain that the Federal Election Commission will appeal the Wisconsin case.

Nevada: on December 8, the 9^th circuit struck down a law requiring statewide initiative petitions to include a considerable number of signatures in each of 13 counties (Nevada has 17 counties). ACLU v Lomax, 04-17033. The basis is that counties have unequal populations, so that the law indirectly favors rural residents over city residents. If the voters of Reno and Las Vegas collectively wanted to get a statewide initiative on the ballot, they couldn’t do it all by themselves, whereas a much smaller group of people dispersed among the smaller counties could.

This is one more precedent that could be used to attack Pennsylvania’s law, requiring candidates seeking a place on a statewide primary ballot (for state office, not federal office) to obtain signatures from 10 counties.

Ohio: on December 1, a U.S. District Court struck down a state law that bans paying petition circulators per signature. Citizens for Tax Reform v Deters, 1:05-cv-212, s.d. This case won because the plaintiffs presented substantial and persuasive evidence that the restriction increases the cost of getting initiatives on the ballot, and that the law is not needed to prevent fraud. The state is appealing.

New Jersey: on December 4, the State Senate passed S2193, which moves the presidential primary to the first Tuesday in February. The bill is expected to pass the Assembly during early 2007. Ever since 1986, state legislatures have been moving presidential primary dates earlier and earlier. In both 1980 and 1984, the median date for presidential primaries was in early May. But in 2004, the median date was March 2 (that is, half the primaries were earlier than March 2 and half were later).

Ohio: HB 638, which would have let candidates who use the independent petition procedure choose a partisan label to be printed on the November ballot, failed to make headway, and the legislature has now adjourned.

Seven election law cases are before the U.S. Supreme Court. In each case, of course, the losing side is asking for Supreme Court review. For New York and Washington, it is the state that lost in the lower court.

Florida: Wexler v Anderson, 06-401, over whether there is any constitutional protection against vote-counting machines that don’t leave a paper trail.

Illinois: Protect Marriage Illinois v Orr, 06-787, over the state’s method of checking signatures for advisory initiative petitions.

New York: State Bd. of Elections v Lopez Torres, 06-766, on the state’s difficult procedures for candidates for Delegate to Judicial nominating conventions to get on the primary ballot.

Pennsylvania(1): Nader v Seroty, 06-696, on whether a state can charge a candidate for the costs of checking his signatures. The Supreme Court is likely to say whether it will take this case or not on January 8, 2007.

Pennsylvania(2): Romanelli v Election Board, 06-742, on the state’s use of an out-of-date and incomplete list of registered voters when it checks petitions on signatures.

Utah: Initiative & Referendum Institute v Utah, 06-534, on whether a state can require that initiatives on a particular subject (in this case, initiatives dealing with wildlife) need a two-thirds vote of the people to pass.

Washington: Washington v Republican Party, 06-730, on whether a state can use the "top-two" primary system (with the use of party labels) against the wishes of political parties.

On December 6, a U.S. District Court upheld Maryland law that puts candidates on the primary ballot in alphabetical order. The case argues that only random order, or rotation, treats everyone equally. He is appealing, with financial help from COFOE. Schaefer v Lamone, 06-896.

Pennsylvania posted its official election returns on December 22. Although write-in information is difficult to find on the state’s web page, that page does include a summary of the number of write-ins cast for each office. However, the web page does not mention how many write-ins any particular write-in candidate received (except for two state legislative candidates). Fortunately, the state does make a county-by-county breakdown available to anyone who asks for it. This includes the number of write-in votes received by particular write-in candidates. If you wish a copy, e-mail BAN.

The data reveals that certain counties, including Philadelphia, failed to record any write-in votes. Philadelphia has failed to acknowledge the existence of any write-in votes for the last 30 years. All write-in votes in Pennsylvania are valid, under the election law and also under a 1905 decision of the Pennsylvania Supreme Court. Pennsylvania does not have any provision for write-in candidates who want their votes tallied to file a declaration of write-in candidacy. Therefore, all write-ins must be counted. Most counties comply. It is possible that some of the write-in candidates will sue Philadelphia.

`	Dem.	Repub.	Green	Lib’t.	Constit.	Soc Wk	oth(1)	oth(2)	Independent
Alab.	519,827	718,327	``	235	``	``	``	``	``
Alas.	97,238	114,697	593	682	`	`	1,285	`	22,443
Ariz.	959,830	543,528	`	30,268	`	`	`	`	`
Ark.	415,224	306,969	12,257						15,213
Cal.	3,376,732	4,850,157	205,995	114,329	61,901	46	69,934
Colo.	888,096	566,303		23,323	9,716				10,996
Conn.	398,220	710,048	9,584		5,560
Fla.	2,178,289	2,519,845		15,987		76	92,595		22,407
Ga.	811,049	1,229,724		81,412		??
Hi.	121,717	215,313	5,435	1,850
Ida.	198,845	237,437		7,241	7,309
Ill.	1,736,219	1,368,682	361,163	476	19,020
Iowa	565,898	466,823	7,728	5,625		1,959
Kan.	491,993	343,586		8,896			5,221
Me.	209,927	166,425	52,690						121,823
Md.	942,279	825,464	15,551				3,481
Mass.	1,234,984	784,342	43,193						154,628
Mich.	2,142,513	1,608,086	20,009	23,524	7,087
Minn.	1,007,460	1,028,568	10,800			2	141,735		13,425
Nebr.	145,115	435,507			8,953				3,782
Nev.	255,684	279,003	6,753		20,019
N.H	298,761	104,288		323
N.M.	384,806	174,364
N.Y.	2,740,864	1,105,681	42,166	14,736		5,919	190,661	323,838	13,355
Ohio	2,435,384	1,474,285	40,965	71,468
Okla.	616,135	310,327
Ore.	699,786	589,748	20,030	16,798	50,229
Pa.	2,470,517	1,622,135	217		92
R.I.	189,503	197,306
So.C.	489,084	601,871
So.D.	121,226	206,990		3,282	4,010
Tenn.	1,241,606	538,508	2,681						27,345
Tex.	1,310,353	1,716,803		26,748					1,344,446
Vt.	108,090	148,014	1,936				638		3,693
Wis.	1,139,115	979,427	40,709
Wyo.	135,516	58,100
TOT.			900,455	447203	193,896	8,002	505,550	323,838	1,753,556

Parties in the "Other(1)" column are: Alaskan Independence (Ak.), Peace and Freedom (Ca.), Reform (Fl. and Ks.), Populist (Md.), Independence (Mn. & N.Y.), Liberty Union (Vt.). Parties in the "Other(2)" column, in New York, are 168,654 Conservative, and 155,184 Working Families.

Gub. totals in 2002 were: Republican 30,766,464; Democratic 27,727,271; Green 830,620; Libertarian 799,086; Nat. Law 215,571; Constitution 150,030; Reform 11,783; Soc. Workers 3,361, Independence 1,018,550; other parties 374,497; independents 404,167.

Gub. totals in 1998 were: Republican 29,455,412; Democratic 25,149,416; Reform 1,355,731; Constitution 423,176; Libertarian 362,337; Green 214,130; Natural Law 106,414; other parties 609,390.

Gub. totals in 1994 were: Republican 32,263,919; Democratic 24,970,399; Constitution 661,603; Libertarian 405,795; Patriot/Independence 316,792; Green 119,337; Grassroots 22,903; Socialist Workers 9,226; other parties & independents 1,302,110. Note: the Constitution Party’s name before 1999 was the U.S. Taxpayers Party.

2006 is the first mid-term year since 1990 in which Democratic gubernatorial nominees outpolled Republican gubernatorial nominees.

	Dem.	Repub.	Lib’t.	Green	Constit.	SocWkr	oth(1)	oth(2)	Independt.
Ariz.	664,141	814,398	48,231
Cal.	5,076,289	2,990,822	133,851	147,074	75,350	47	117,764	108
Conn.	450,844	109,198	80	5,922	4,638				564,095
Del	170,567	69,734	2,671
Fla.	2,890,548	1,826,127				16			76,765
Hi.	210,330	126,097	6,415
Ind.		1,171,596	168,828
Me.	111,984	402,598							29,220
Md.	965,477	787,182		27,564
Mass.	1,500,738	661,532
Mich.	2,151,278	1,559,597	27,012	23,890	18,341
Minn.	1,278,849	835,653		10,714	5,408	5	71,194
Miss.	213,000	388,399	9,522
Mo.	1,055,255	1,006,941	47,792	18,383
Mont.	199,845	196,283	10,377
Nebr.	378,388	213,928