9^th CIRCUIT STRIKES DOWN ARIZONA PETITION DEADLINE AND ALSO LEGALIZES OUT-OF-STATE CIRCULATORS

On July 9, the 9^th Circuit struck down two Arizona election laws: (1) the law making it illegal for out-of-state circulators to work; and (2) Arizona’s early June petition deadline for independent presidential candidates. Nader v Brewer, 06-16251.

Only a few hours after the decision came out, Arizona’s Secretary of State, Jan Brewer, said that she would appeal to the U.S. Supreme Court. She seemed far more upset by the part of the decision about the deadline, than about the part of the decision on out-of-state circulators. On July 22, the state asked for a rehearing before all the active judges of the 9^th circuit. The petition for rehearing has eleven pages about the deadline, but only three pages about the out-of-state circulator issue.

Arizona does not hold its primary (for office other than president) until September, so obviously it can’t print its November ballots until three months after the independent petition deadline. The state had argued that, nevertheless, it is easier to plan for the ballot-printing if the state knows very early how many independent candidates will be on the ballot.

The problem with that argument is that the State Constitution says initiative petitions are not due until four months before the general election, i.e., early July. Arizona had 19 statewide initiatives on the November 2006 ballot. The amount of space an initiative requires on the ballot is difficult to predict. Some initiatives can be explained on the ballot in just a few lines, but others require as many as nine lines. Therefore, the state’s argument that it has a good reason to require independent candidate petitions, a full month before initiative petitions are due, is not persuasive. The state’s request for a rehearing does not mention the Initiative deadline.

Jan Brewer seems to have a callous disregard for voters who wish to vote for independent candidates. In 2005, she sponsored a bill, which was signed into law, making it legally impossible for an independent candidate to file to have his or her write-ins counted, if that independent had tried and failed to get on the ballot.

In 2006, Senator Karen Johnson, who is sympathetic to independent voters and candidates, sponsored a bill which would have relaxed the independent petition deadline, moving it to July 15. However, that bill failed to pass. Ironically, if it had passed, that could have derailed the opinion that was just won.

Traditionally, minor party and independent presidential candidates have entered the race in the middle of presidential election years. In 1924, U.S. Senator Robert La Follette did not declare his independent candidacy for president until July 4. He only entered the race when he determined that William G. McAdoo could not win the Democratic nomination. Theodore Roosevelt didn’t know he would be running for president as the nominee of a new party, in 1912, until after the Republican convention in June of that year. Neither did Strom Thurmond know he would be running for president in 1948, until after the Democratic convention in mid-July.

Arizona’s independent petition deadline had been in either October, or September, in all the years before 1993. In 1993 the legislature moved it to late June, and then moved it to mid-June, and then moved it again to early June.

The deadline portion of the decision is especially poignant for Arizona Libertarians who supported Harry Browne for president in 2000. The deadline kept Browne off the ballot, spoiling his 50-state ballot access.

In 2000, the Arizona Libertarian Party state officers had been angry with the national Libertarian Party, and so had refused to list Browne as the Libertarian presidential nominee. Browne then circulated an independent candidate petition, but it was submitted after the June deadline. Browne sued to overturn the deadline. He lost in lower state court. He won (after the election) in the State Court of Appeals, but then lost in the State Supreme Court. The U.S. Supreme Court refused to hear his appeal.

The part of the decision that strikes down the ban on out-of-state circulators (assuming it is not overturned by the full 9^th circuit, or by the U.S. Supreme Court) will be immensely helpful to minor party and independent candidates. The costs of getting on the ballot are far higher when minor parties, and supporters of independent candidates, cannot cross state lines to do petition circulation.

On July 17, U.S. District Court Judge Edmund Sargus issued an injunction, putting the Libertarian Party on the ballot. Libertarian Party of Ohio v Brunner, 2:08cv-555. The state is not appealing. This is the first time any party, other than the Democratic and Republican Parties, will have been on the ballot in Ohio since 2000.

The basis for the decision is that the 6^th circuit had struck down the old law in 2006, and the legislature had never passed a new one. Even odder, no legislator had even introduced a bill to create a new requirement. In 2007 the Secretary of State had ruled that any group that submitted 20,114 signatures by late November would be recognized, but the recent opinion said only state legislatures can write ballot access rules.

On July 10, Pennsylvania Attorney General Thomas Corbett announced that Grand Juries in Pittsburgh and Harrisburg had been investigating rumors that many of the 458 employees of the Pennsylvania House Democratic Caucus had done partisan political work on government time. Furthermore, those who had done the most partisan political work had been given bonuses from state government funds.

The Presentments of these two juries made the front pages, because among the other partisan political work that had been done, dozens of these state employees had worked full-time on both the Nader petition challenge in 2004, and the Green Party petition challenge in 2006. The story continues to occupy newspapers in Pennsylvania. For example, on July 29 the Harrisburg Patriot-News editorialized that Ralph Nader should not be required to pay the $81,102 that the courts had ruled should be paid to the people who challenged his petitions.

The biggest payoff, however, was on July 25, when Senator Mike Folmer introduced the model bill that had been written three years ago by the Pennsylvania Ballot Access Coalition. Based on the Delaware law, it says a qualified minor party is one that has registration membership of one-twentieth of 1% of the state total. Qualified minor parties would nomiante by convention and be freed of any petitioning. Independent candiates for statewide office would need 2,000 signatures, with lesser amounts for district independent candidates.

Senator Folmer is a Republican, and the State Senate has a Republican majority, so there is some hope that his bill (which still doesn’t have a bill number) can get a hearing.

On July 15, the Green Party candidate for U.S. Senate from 2006, Carl Romanelli, asked the Pennsylvania Supreme Court to reopen its earlier determination that he should pay $80,407 to the people who had challenged his petition.

Ralph Nader is about to file a similar request with that same court, asking for a reopening of that court’s ruling that Nader must pay $81,102 to the people who challenged his 2004 petition.

Some of the justification for the original determinations that the candidates should pay the costs of the challenges, was a belief that Nader (in 2004) and Romanelli (in 2006) had not been dililgent about having volunteers present in court, in cities all across Pennsylvania, to participate in the challenge process. The volunteers for Nader and Romanelli, of course, were not being paid. Now that it is known that the taxpayers were paying for the labor of the challengers, the case for a re-opening is strong.

The Presentment of the juries includes these details about the Nader 2004 challenge: "A total of $188,800 in taxpayer funded bonuses was issued to (Commonwealth employees) as a reward for the conduct of political endeavors and campaign work. Such campaign work included the challenge of Nader’s petitions…The employees would conduct reviews during regular working hours at their Caucus workplaces, utilizing their Caucus computers to research information whose names appeared as signators on the petitions, through the Constituent Tracking Service, a program which was designed and intended for legitimate legislative use, and which included voter registration information. The Caucus computers were further utilized to compile and transmit the information which would be used to challenge the signatures or petition pages…The two most outstanding examples of misappropriation of taxpayer resources in petition challenges were in the challenges to Ralph Nader in 2004 and Carl Romanelli in 2006…As many as fifty Caucus staff members participated in the challenge effort…Many of the Caucus employees spent an entire week on it…Three employees even drove boxes of materials necessary for the challenge filing to Harrisburg, where they were delivered to the challenge attorney."

The Massachusetts Senate is likely to pass the National Popular Vote Plan on July 30 (HB 678), and Governor Patrick Deval is expected to sign it. The California Assembly passed the same bill on June 30 (SB 37). It returns to the Senate this month, but then will face a tough challenge to obtain a signature from Governor Arnold Schwarzenegger; he had vetoed the same bill in 2006. The Rhode Island bill, S 2112, was vetoed by Governor Donald Carcieri, a Republican, on July 3.

Although the proponents of the National Vote Plan have tried very hard to woo Republican support, and although some Republican state legislators have supported the bills, no Republican Governor has yet signed one of the bills.

Audit Trail: on July 1, U.S. Senators Dianne Feinstein and Robert Bennett introduced S. 3212, to mandate an audit trail for vote-counting machines in federal elections.

Weekend Voting: on July 17, Congressman Steve Israel (D-NY) introduced HR 6240, to change federal election day from the first Tuesday after the first Monday in November, to the first complete weekend in November.

Veterans Hospitals: on July 22, nine U.S. Senators introduced S. 3308, to compel the Veterans Administration to give access to VA facilities, for people who want to visit in order to register voters. Senate Majority Leader Harry Reid almost never co-sponsors bills, but he is co-sponsoring this bill, along with Senators Dianne Feinstein, John Kerry, Hillary Clinton, Patrick Leahy, Patty Murray, Barack Obama, Charles Schumer, and Ron Wyden.

On June 27, the national League of Women Voters voted to study the National Popular Vote Plan.

On July 21, the California Secretary of State recognized the July 5 meeting of the American Independent Party, instead of the June 28 meeting. The July 5 meeting had been called by supporters of Alan Keyes for president; the June 28 meeting had been called by supporters of Chuck Baldwin for president.

The Secretary of State’s decision was surprising, since the June 28 meeting had many more members of the State Central Committee in attendance than the July 5 meeting. The June 28 meeting had 55 people in attendance, including 35 members of the State Central Committee. The July 5 meeting only had 19 people in attendance, and only 7 members of the State Central Committee. Furthermore, not everyone at the July 5 meeting voted for the Keyes electors.

The Secretary of State’s office said it had no knowledge of how many State Central Committee members were at either meeting. The Secretary of State said that since Ed Noonan had called the July 5 meeting, and since he was listed in the records as the outgoing state chair, she automatically recognized the July 5 meeting.

Ed Noonan, outgoing state chair, had initially called a state central committee meeting for early June, but then he had cancelled that meeting. The other state party officers, fearing that Noonan would not call any meeting (which would have left the party with no candidates for presidential elector), then called the June 28 meeting. Party bylaws give the other officers the authority to call such a meeting, when the Chair refuses to do so. The Secretary of State’s response to this point was that, "We can’t look into party bylaws."

After the other officers had called the June 28 meeting, Noonan then called the July 5 meeting. Noonan argues that the election code requires parties to hold their state conventions in Sacramento, but that law had been held unconstitutional by the U.S. Supreme Court in 1989.

The legislature had removed most references to the need to meet in Sacramento, but accidentally missed on election code reference. Noonan’s meeting was in Sacramento; the other was in Los Angeles.

The July 5 meeting voted that the American Independent Party will henceforth be the California affiliate of America’s Independent Party, which was founded by Alan Keyes. That party is not ballot-qualified in any state outside California, and so far, the label "America’s Independent Party" isn’t set to appear on any state’s ballot. Keyes is on the ballot in Colorado, but with the label "Unaffiliated".

It is expected that the Baldwin faction of the California American Independent Party will file a lawsuit in state court on August 4, in state court, to reverse the Secretary of State’s ruling.

Alabama: it is very likely that Andy Shugart will sue in federal court on August 1, to overturn a state law that requires more signatures for an independent candidate for U.S. House, than are required for an independent presidential candidate.

Alaska: the 9^th circuit will hear Alaskan Independence Party v State on August 8. The issue is whether the Constitution protects the right of a party to exclude disloyal members from running in its primary for public office.

Arizona: on July 7, the State Supreme Court placed a candidate on the primary ballot, even though he only has enough valid signatures if post office box addresses are considered suitable to be placed on ballot access petitions. The Court said it will explain its reasoning later. Jenkins v Hale, 08-0208.

Florida: State Senator Steven Geller is dropping his lawsuit, Geller v Democratic National Committee, because he has been assured that the Democratic National Convention will seat the full Florida delegation. The case has been pending in U.S. District Court in Miami, 08-cv-60774.

Illinois: on July 28, an independent candidate for U.S. House filed a federal lawsuit, arguing that since the state only requires 5,000 signatures in years after redistricting (1982, 1992, 2002, etc.), there is no sound reason to require double that in other election years. The plaintiff, Allan Stevo, had submitted 7,200 signatures to get on the ballot for the 10^th district, which would probably have been enough in 2012. However, this year he needs 10,111. Stevo v Keith, 08-3162, Springfield.

Louisiana: Jimmy Fahrenholtz, a member of the New Orleans School Board, is fighting for a place on the Democratic primary ballot for U.S. House, 2^nd district. He was removed from the ballot by a lower court, because the lower court found that he had made a false statement on his declaration of candidacy about whether he owed any fines to the state campaign finance office. The State Court of Appeals tied 4-4 on whether candidates for Congress can be kept off the ballot for violating a provision of state campaign laws. Fahrenholtz is hoping the State Supreme Court will hear his appeal. Williams v Fahrenholtz, 2008-c-1680.

Maine: on July 28, the State Supreme Court ruled that if the evidence shows that a circulator didn’t watch one particular signer sign his or her petition, then all the signatures circulated by that petitioner must be discarded. The result is that the only non-major party candidate for U.S. Senate, independent Herb Hoffman, only had 3,929 useable signatures, even though all sides agree that he over 4,000 registered voters signed his petition. Knutson v Dept. of the Secretary of State, 08-375. Hoffman may sue in federal court.

Ohio: on July 22, Brian Moore (who was already suing the state over whether out-of-staters may circulate independent candidate petitions) amended his complaint, to also ask that the Socialist Party be placed on the November ballot for president because it enjoys a modicum of support, under the recent Libertarian decision.

STATE	McKinney	Nader	Swift	Mesplay	Johnson	E.Brown	Ball	Hawkins	Uncomm.
Arizona	6	`	`	1	1	`	`	`	`
Arkansas	4	`	1	1	`	`	1	`	1
California	23	52	3	2	1	4	1
Colorado	3	`	2	2	`	5	`	`	`
Conn.	10	1	`	`	`	`	`	`	`
Delaware	6		`	`	`	`	`	`	`
Dt. Col.	13	1	1	`	`	`	1	`	`
Florida	11	2	2	1	`	`	`	`	`
Georgia	7	`	1	`	`	`	`	`	`
Hawaii	4	4	`	`	`	`	`	`	`
Illinois	25	`	`	6	`	`	5	8	`
Indiana	6.5	`	`	1.5	`	`	`	`	`
Iowa	3	`	2	1	1	`	`	`	1
Louisiana	5	1	`	`	`	`	`	`	`
Maine	15	`	1	.5	1.5	`	`	`	`
Maryland	6	`	3	3	4	`	`	`	`
Mass.	13	3	1	3	1	`	`	`	`
Michigan	17	4	1	1	1	`	`	`	`
Minn.	11	`	`	`	`	`	`	`	1
Miss.	4	`	2	2	`	`	`	`	`
Missouri	5	`	1	`	2	`	`	`	`
Montana	1	`	`	1	`	`	`	`	`
Nebraska	8	`	`	`	`	`	`	`	`
N.Jersey	6	1	`	1	1	`	`	`	1
N.York	28.5	2.5	`	2	3	`	`	`	`
No. Car.	5	`	`	1	2	`	`	`	`
Ohio	3	1	`	`	1	`	`	`	1
Oregon	9	`	`	`	1	`	`	`	`
Pennsy.	10	2	.5	1	2	`	`	`	2.5
Rhode Is.	5	`	`	`	1	`	`	`	`
So. Car.	1	`	1	`	`	`	`	`	`
Tenn.	5	`	1	1	1	`	`	`	`
Texas	1	`	10	`	1	`	`	`	`
Utah	2	`	`	`	`	`	`	`	`
Virginia	2	3	1	`	1	`	`	`	1
Wash.	10	`	1	1	`	`	`	`	`
W. Va.	2	`	`	`	6	`	`	`	`
Wisconsin	19	1	1	2	`	`	`	`	1
Black Cau	2	`	`	`	`	`	`	`	`
Gay Cau.	4	`	`	`	`	`	`	`	`
Women	2	`	2	`	`	`	`	`	`
TOTAL	323	78.5	38.5	35	32.5	9	8	8	9.5

Candidates seeking the 2008 Green Party presidential nomination were Cynthia McKinney, Kat Swift, Kent Mesplay, and Jesse Johnson. Elaine Browne, Howie Hawkins, Jared Ball, and Ralph Nader were not seeking the nomination, but they still received votes at the convention because their names had appeared on some Green Party presidential primary ballots. For vice-president, Rosa Clemente of New York city was nominated by acclamation. The McKinney-Clemente ticket is the first ticket composed of two Black women in U.S. history.

These 13 states did not send any delegates to the convention: Alabama, Alaska, Idaho, Kansas, Kentucky, Nevada, New Hampshire, New Mexico, North Dakota, Oklahoma, South Dakota, Vermont, and Wyoming. By contrast, in 2004, seven states had no delegates: Alaska, Kentucky, New Hampshire, North Dakota, South Dakota, West Virginia, and Wyoming.

STATE	REQUIREMENTS		SIGNATURES COLLECTED				DEADLINES
	FULL PARTY	CAND	LIB'T	GREEN	CONSTI	NADER	Party	Indp.
Alabama	37,513	5,000	*1,200	0	*500	*6,000	June 3	Sep. 8
Alaska	(reg) 7,124	#3,128	already on	0	already on	3,000	Aug. 6	Aug. 6
Ariz.	20,449	#21,759	already on	already on	*0	already on	Mar. 6	*unsettled
Arkansas	10,000	#1,000	already on	already on	already on	*finished	June 30	Aug. 4
Calif.	(reg) 88,991	158,372	already on	already on	*disputed	seek nom	Dec. 31, 07	Aug. 8
Colorado	(reg) 1,000	pay $500	already on	already on	already on	already on	June 1	June 17
Conn.	no procedure	#7,500	*1,000	*3,600	250	*9,000	- - -	Aug. 6
Delaware	(reg) 284	5,674	already on	already on	already on	seek nom	Aug. 12	July 15
D.C.	no procedure	*3,883	*150	already on	*0	*150	- - -	Aug. 19
Florida	be organized	104,334	already on	already on	already on	seek nom	Sep. 2	July 15
Georgia	44,089	#42,489	already on	*too late	0	0	July 8	July 8
Hawaii	663	4,291	already on	already on	already on	already on	Apr. 3	Sep. 5
Idaho	11,968	5,984	already on	0	already on	*1,000	Aug. 29	Aug. 25
Illinois	no procedure	#25,000	*already on	already on	*already on	*already on	- - -	June 23
Indiana	no procedure	#32,742	already on	too late	too late	too late	- - -	June 30
Iowa	no procedure	#1,500	*730	*1,700	*750	*500	- - -