FIVE USEFUL COURT DECISIONS IN LAST 30 DAYS

During the last thirty days, five constitutional decisions have been handed down that will be useful, either directly or indirectly, to minor parties and independent candidates.

Secrecy of Petition Signatures

On September 10, U.S. District Court Judge Benjamin Settle, a Bush, Jr. appointee, ruled that the Constitution protects privacy for voters who sign petitions, and ordered the Washington Secretary of State not to release the names of voters who signed a particular Referendum petition.

The case is John Doe v Sam Reed, C09-5456, w.d. The case was brought by people who circulated a petition for a public vote on a bill passed by the legislature. That bill says that the state will treat domestic partners as though they were married. The measure will be on the November 3, 2009 ballot. There would not have been a vote, except for the Referendum petition that was filed after the bill was signed into law.

The decision is not based on the fact that the particular Referendum is controversial. The decision applies to all ballot questions, and, presumably, all petitions to place candidates or parties on the ballot. The decision says that it is likely that the Public Records Act, to the extent it requires that the names and addresses of petition signers to be considered public records, is unconstitutional. A decision on the constitutionality of the Public Records will be made later.

The order depends on two U.S. Supreme Court decisions: Buckley v American Constitutional Law Foundation, a 1999 decision that said circulators cannot be forced to wear badges that gave their name; and McIntyre v Ohio Elections Commission, a 1995 decision that struck down a law prohibiting the distribution of anonymous campaign literature. The decision says if circulators have privacy rights, so do the signers.

No court had previously ruled that the Constitution protects the privacy of petition signers. In the past, unpopular causes have suffered because newspapers have published the names and addresses of people who signed their ballot access petitions.

In 1940, the Communist Party was trying to get 24,129 signatures to get on the Ohio ballot. Its effort was harmed because as soon as the party turned in signatures, elections officials would give the names of the signers to the Scripps-Howard newspaper The Cleveland Express. That paper would then publish the names and addresses of the signers on the front page. The party went to court, but the Cuyahoga County Common Pleas Court ruled against the party. The case was Johnson v Scripps Publishing Co., 32 Ohio Law Abstract 423.

The Scripps Howard newspapers also printed the names and addresses of people who signed petitions for Henry Wallace and the Progressive Party in 1948, in Boston, Cleveland, Milwaukee, New Haven, and Pittsburgh. And in California, the FBI obtained copies of all the petitions turned in for the Progressive Party.

More recently, in 2006, opponents of the Ward Connerly initiative to abolish affirmative action in Michigan obtained the names and addresses of people who had signed the petition, and some talk radio stations broadcast some of those signers.

If this decision stands up, and is duplicated in other court decisions around the country, the entire challenge system used in some states would end. Most states provide that elections officials check petitions, but New York, Illinois, and Pennsylvania, in particular, assume that all petitions are valid unless someone challenges them. But if petition signers enjoy privacy rights, the challenge system would no longer work.

Presidential Stand-Ins

On September 18, U.S. District Court Judge Nathaniel Gorton ruled that if Massachusetts law actually prevents an unqualified party from using a stand-in presidential candidate on its ballot access petition, then that law is unconstitutional. Barr v Galvin, cv08-11340. The basis for the decision is the Equal Protection Clause. All states, including Massachusetts, let qualified parties substitute a new presidential or vice-presidential candidate, assuming the substitution is made before ballots are printed. For example, in 1972, the Democratic Party certified the names of George McGovern for President and Thomas Eagleton for Vice-President to all states, in July. In August, Eagleton resigned from the ticket and was replaced by R. Sargent Shriver. All states, including Massachusetts, permitted the party to substitute Shriver.

The Libertarian Party national convention in 2008 was at the end of May. The party had circulated its presidential petition in Massachusetts months before the national convention, but since it didn’t know who would be nominated, it used a stand-in, George Phillies. After the convention nominated Bob Barr instead, Massachusetts refused to let the party make the substitution. However, Judge Gorton had granted an injunction last year forcing Massachusetts to make the change. The decision of September 18, 2009 was therefore not a surprise.

The decision will help the Libertarian Party win a parallel case pending in New Hampshire. The party files its brief in the New Hampshire case on September 29. The only other states that have been asked to approve presidential stand-ins on petitions, and which have refused, are Maine and Alabama. In most states the issue never comes up, because most states have a petition process that doesn’t require candidates’ names.

Equal Treatment in Public Funding of Candidates

On August 27, U.S. District Court Judge Stefan Underhill, a Clinton appointee, held that Connecticut’s public funding law for candidates is so discriminatory in favor of candidates from the ranks of the two major parties, and against other candidates, that it is unconstitutional. The opinion, Green Party of Connecticut v Garfield, 2:06cv1030, is 138 pages. Judge Underhill stayed his own opinion, so that the public funding program is still in effect while the state appeals to the 2^nd Circuit.

Connecticut’s public funding law was passed by the legislature in 2005 and used for the first time in 2008. It requires all candidates for state office who want public funding to receive a large number of small contributions. Members of parties that polled 20% in the last election have no other barriers to receiving public funding.

However, independent candidates, and candidates of new parties (or parties that did not poll 10% of the vote for that office in the last election) must not only collect the needed number of small contributions, but must submit petitions of 20% of the last vote cast if they are to receive funding equal to what Democrats and Republicans get. The statewide public funding petition in 2010 for Governor would be 224,694 valid signatures. No independent candidate in U.S. history has ever met a petition hurdle that high. The largest petition requirement ever met by an independent candidate was California’s requirement of 134,781 signatures, overcome by Ross Perot in 1992.

The decision depends on the idea that in some legislative districts in Connecticut, one of the major parties is overwhelmingly stronger than the other major party. For example, in 2008, even with the public funding program in place, out of 187 legislative races, no Republican ran in 51 districts, and no Democrat ran in 19 districts, for a total of 70 districts (37% of the races) with one major party abstaining.

Connecticut tried to defend its law by saying it doesn’t want to fund hopeless candidacies. That argument seems to concede that the required number of small contributions is too easy. But accepting the state’s argument on its face, the state had no answer to the obvious question, which is why does it fund certain hopeless Democrats and Republicans, and not fund other hopeless candidates?

The decision was not surprising, because Judge Underhill had already ruled on March 20, 2008 in this case that there must be a trial. His 2008 ruling, which is reported at 537 F.Supp.2d 359, stressed that all the other states with public funding treat all candidates alike, regardless of that candidate’s partisan affiliation. His recent decision makes that point again. He did not say, but he could have said, that the bills in Congress to provide for public funding for congressional candidates, S752 and HR 1826, also treat all candidates the same regardless of partisan affiliation or independent status.

Government Photo-ID Rules for Voting at the Polls

On September 17, the Indiana State Court of Appeals struck down the 2005 law that requires voters at the polls to show government photo-ID with an expiration date. League of Women Voters v Rokita, 49A02-0901-cv-40. The decision says that Indiana’s equal protection clause does not permit Indiana to exempt some kinds of voters from the requirement, while at the same time mandating it for other voters. Currently, Indiana voters who vote absentee need not possess any photo-ID. Also, voters who live in institutions which happen to be the site of polling places do not need ID.

This Indiana case is not directly related to ballot access, but it does have helpful ballot access implications. The U.S. Supreme Court ruled last year that Indiana’s photo-ID law does not, on its face, violate the U.S. Constitution. The Indiana court struck down the law on the basis that it violates the Indiana Constitution.

This is thus a rare case of a state court ruling that a state Constitution gives more protection to voting rights than the U.S. Constitution does.

Many state Constitutions have language saying that elections must be "free and equal", but sadly, most state courts usually treat that phrase as window-dressing. When minor parties or independent candidates file lawsuits against restrictive ballot access laws based on state Constitutional guarantees, state courts often say the state Constitution doesn’t really give any more protection for voting rights than the U.S. Constitution does. State courts that have, in the past ten years, ruled against ballot access constitutional arguments include Alaska, Arizona, California, Georgia, Hawaii, Illinois, Kentucky, Maine, New Hampshire, Oklahoma, Pennsylvania, and West Virginia. A lawsuit is pending in the North Carolina State Court of Appeals that may win based on the North Carolina Constitution.

Campaign Finance

On September 18, the U.S. Court of Appeals, D.C., struck down federal regulations that tell non-profits groups that they cannot receive more than $5,000 from an individual, if the money is to be used for that non-profit’s own ad, commenting on a candidate for federal office. Emily’s List v FEC, 08-5422.

This decision is likely to help Unity08, the group formed in 2006 that wanted to qualify itself as a party and then nominate a presidential candidate via the internet, with any voter being allowed to vote. Unity08 itself has a court hearing against the FEC, set for October 15 in the D.C. Circuit.

The FEC had told Unity08 that no one could give it more than $5,000. If that ruling had been in effect in 1995, Ross Perot could not have spent his own money on creating the Reform Party. Because of the FEC’s hostile 2006 ruling, Unity08 gave up. But it still hopes to overturn the FEC ruling. If it does so, that will be immensely helpful for future attempts to form new political parties.

Arkansas: on August 27, the Green Party filed a federal lawsuit against the state’s definition of "party". The Green Party polled over 20% for U.S. Senate in 2008, and averaged 19% for its three U.S. House candidates, and elected a state legislator. But, not withstanding that showing that it does enjoy a modicum of voter support, the state removed it from the ballot because it didn’t poll 3% for President. The case is Green Party of Arkansas v Daniels, 4:09-cv-695. It was assigned to Judge J. Leon Holmes, a Bush, Jr. appointee.

New Jersey: on September 18, two gubernatorial candidates filed a lawsuit against the format of New Jersey ballots, which give the best spots to the Democratic and Republican nominees. The plaintiff-candidates are Chris Daggett, an independent who has been polling 10% in the polls and will be in the gubernatorial debates this month, and Ken Kaplan, the Libertarian. Olson v Corzine, Morris Co. Superior Court, L-3022-09. The Complaint cites much social science research that the order of candidates affects voting behavior.

Ohio: on September 25, a 21-year-old candidate, Brett McClafferty, filed a federal lawsuit against an ordinance in Streetsboro, that says no one may run for city office who is under age 23. McClafferty v City of Streetsboro.

Rhode Island: on September 18, a candidate for Mayor of Central Falls filed a federal lawsuit against a city ordinance that says no voter may sign petitions for two opposing candidates for the same city office. The plaintiff-candidate, Hipolito Fontes, needed 200 valid signatures. He submitted 333, but he was told only 197 were valid. The reason he had a high invalidity rate, he says, is that his only opponent, the incumbent Mayor, had campaign workers follow him as he petitioned. Then, the Mayor’s campaign workers would ask the same people who had signed for Fontes to also sign for the Mayor. The case is Fontes v City of Central Falls, 09-437.

D.C.: on September 2, the lawsuit Libertarian Party v Board of Elections was transferred from the D.C. court system to a U.S. District Court, at the Board of Elections’ request. The case challenges the failure of the Board to tally write-ins for presidential candidates who have filed a declaration of write-in candidacy.

Idaho: on September 4, U.S. District Court Judge Lynn Winmill ruled that a trial is needed in Idaho Republican Party v Ysursa, 08-cv-165. The issue is whether the party has a right to close its primary to non-members. Idaho is one of the states in which voters don’t register into parties. The outcome will depend on whether there is evidence that people not in sympathy with the Republican Party are voting in Republican primaries.

Ohio: on September 10, the U.S. government appealed U.S. v Euclid City School Board to the 6^th Circuit. The lower court had ruled that the city of Euclid should use Limited Voting for its school board elections. Euclid is 45% black, but has almost never had any blacks elected to its school board. Limited Voting is a system in which the voter may only vote for one candidate, even though there are two or three seats open.

Pennsylvania: on August 31, Carl Romanelli again asked the State Supreme Court to rehear his appeal against the 2006 decision that he must pay approximately $80,000 to the people who challenged the Green Party statewide petition in 2006.

Pennsylvania (2): on September 18, a U.S. District Court in Scranton upheld a jury’s decision of November 18, 2008, to award $67,000 in damages to Denise Carey. Carey had submitted a local initiative petition in Wilkes-Barre in 2004, which had been held not to have enough valid signatures. Then, she had been ordered to pay $11,056 to the people who had challenged her petition. She had then countersued that such treatment violates her First Amendment rights to petition, and had won that case in front of a federal jury. The city will now appeal to the 3^rd Circuit.

South Carolina: on August 14, the Republican Party of Greenville County withdrew its federal lawsuit that had been filed in April. The lawsuit had been filed to gain the right for the party to hold a closed primary. Party officials have not returned phone calls asking why they withdrew the case, which had been Harms v Hudgens, 6:09-1022. South Carolina is one of the states in which people do not join a party on voter registration forms, so on primary day any voter can vote in any party’s primary.

South Carolina (2): on August 12, a U.S. District Court upheld a law that says if one party nominates a candidate for public office, and later that same candidate tries to get the nomination of a different party, that voids the ability of the original party to continue to keep that person as a nominee. South Carolina Green Party v Election Commission. The decision was not a surprise, since the same court had refused injunctive relief last year. The party has now appealed to the 4^th circuit, 09-1915.

South Carolina (3): on August 14, the United Citizens Party sued the state in federal court, alleging that it toughened procedures for candidates and never bothered to preclear that change with the U.S. Justice Department. Specfically, the state changed the rules on filing declarations of candidacy. In the past, a candidate who was seeking the nomination of more than one party only had to file one declaration of candidacy. But now the candidate must file a separate declaration for each party. Gray v Election Commission, 3:09-2126.

Washington: on September 8, a state court ruled that referendum petition signatures are valid, even if the signer wasn’t registered when he or she signed the petition. All that matters is that the signer register before the signatures are checked. The same court also ruled that signatures are valid, even if the circulator didn’t sign the petition. Washington Families Standing Together v Reed, Thurston Co. Superior Court, 09-2-02145-4.

`	Democrat	Repub.	Green	Libertarian	Indep.	Constitution	Personal Choice
Alabama	8,250	8,681	- -	- -	- -	- -	- -
Arizona	16,330	9,949	684	1,864	- -	- -	- -
Idaho	18,278	13,378	- -	1,456	- -	1,208	- -
Iowa	48,784	35,553	- -	- -	- -	- -	- -
Kentucky	111,242	82,036	- -	- -	- -	- -	- -
Maine	9,790	4,118	2,718	- -	- -	- -	- -
Minn.	43,859	26,059	3,542	- -	4,842	- -	- -
N. Mex.	6,274	3,514	404	228	- -	24	- -
No. Car.	429,736	264,951	- -	39,691	- -	- -	- -
Ohio.	154,263	154,263	- -	- -	- -	- -	- -
Rhode I.	47,718	33,095	290	- -	- -	- -	- -
Utah	38,830	52,270	4	2,650	- -	3,288	128
Virginia	44,971	30,298	- -	- -	- -	- -	- -
TOTAL	978,325	718,165	7,642	45,889	4,842	4,520	128

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% in the last election. All the other states let the taxpayer decide which party to help. The Personal Choice Party in Utah is no longer ballot-qualified.

YEAR	Demo.	Rep.	Green	Libertarian	Reform	Constit.	Other
2000	941,463	822,671	31,864	13,024	5,054	19,209	71,824
2001	680,608	611,065	12,184	8,173	755	2,295	46,232
2002	928,716	892,438	84,120	7,289	749	2,886	97,559
2003	1,181,312	1,126,585	20,665	7,859	46	51	9,975
2004	828,136	786,190	16,309	8,446	324	1,409	8,822
2005	750,461	714,238	18,100	5,546	34	2,442	25,887
2006	915,945	806,193	50,434	7,282	- -	5,847	45,355
2007	1,050,593	850,580	15,716	5,839	- -	3,503	15,627
2008	1,520,746	1,127,478	8,324	5,034	- -	5,938	5,219
2009	978,325	718,165	7,642	45,889	- -	4,520	4,970

Ballot Access News has been collecting this data starting in 2000, so those ten years of data are summarized in the second chart. The ratio between the amounts contributed to the Democratic Party and the Republican Party is interesting to track. Although Democrats have always received more donations from state income tax checkoffs than Republicans have, the ratio between the two major parties was closest in 2003, and furthest apart in 2008. Also note the Libertarian national total in 2009 was the highest it has ever been., although that was almost entirely due to its high total in North Carolina. Ironically, the party was on the tax form in North Carolina by mistake, because the law says only parties with registration of 1% should be on the tax form.

The chart below shows that Washington state has always had at least one minor party or independent candidate on the November ballot, for either a Congressional election, or a statewide state office election, ever since it became a state, through 2006.

However, in 2008, the year Washington implemented the "top-two" election system, no minor party or independent candidates for either Congress or statewide state office appeared on the November ballot. The purpose of the chart on page five is to document this assertion. The assertion about the sudden absence of alternate candidates in 2008 is being made by opponents of "top-two", for the purpose of rebutting the notion that somehow the "top-two" system helps minor parties and independent candidates.

The minor party and independent candidates who did file in Washington state in 2008 were on the primary ballot, but because they didn’t place first or second, they were not allowed to be on the November ballot, and thus they could not campaign in the fall, when voters are most interested in hearing ideas about policy.

The chart only picked one minor party or independent candidate from the past, for each election year. Generally there were many such candidates, and the chart just picked one at random. The chart shows the party affiliation, and what the candidate ran for, and what percentage of the vote the candidate received.

YEAR	CANDIDATE	PARTY	OFFICE	PERCENT
1890	Robert Abernathy	Prohibition	U.S. House-at-large	5.14%
1892	M. F. Knox	Peoples	U.S. House-at-large	23.18%
1894	W. W. Van Dusen	Prohibition	U.S. House-at-large	.28%
1896	C. A. Sayler	Prohibition	U.S. House-at-large	1.12%
1898	A. C. Dickinson	Prohibition	U.S. House-at-large	1.53%
1900	Guy Posson	Prohibition	U.S. House-at-large	2.12%
1902	D. Burgess	Socialist	U.S. House-at-large	4.67%
1904	T. C. Wiswell	Socialist	U.S. House-at-large	6.40%
1906	Emil Herman	Socialist	U.S. House-at-large	7.42%
1908	D. Burgess	Socialist	U.S. House, dist. 1	2.36%
1910	Leslie E. Aller	Socialist	U.S. House, dist. 2	11.19%
1912	Leslie E. Aller	Socialist	U.S. House, dist. 2	15.29%
1914	George E. Boomer	Socialist	U.S. House, dist. 2	15.35%
1916	R. J. Olinger	Socialist	U.S. House, dist. 2	11.20%
1918	James M. Salter	Socialist	U.S. House, dist. 2	5.54%
1920	Knute Hill	Farmer-Labor	U.S. House, dist. 4	17.87%
1922	P. B. Tyler	Farmer-Labor	U.S. House, dist. 2	20.03%
1924	Knute Hill	Farmer-Labor	U.S. House, dist. 4	13.03%
1926	David Burgess	Socialist Labor	U.S. Senate	1.10%
1928	Ruby Herman	Socialist	U.S. House, dist. 1	.38%
1930	Jared Heardlick	Socialist Labor	U.S. House, dist. 1	2.20%
1932	J. T. Sullivan	Liberty	U.S. House, dist. 3	18.69%
1934	Tillman K. Garrison	Socialist	U.S. House, dist. 1	2.05%
1936	Orville W. Roundtree	Christian	U.S. House, dist. 3	.46%
1938	John F. McKay	Indp. Socialist	U.S. House, dist. 5	.92%
1940	Henry P. Huff	Communist	U.S. House, dist. 3	.21%
1942	Selmer Skreen	Socialist Labor	U.S. House, dist. 6	.55%
1944	Jack R. Hopkins	Socialist	U.S. House, dist. 1	.39%
1946	Knute Hill	Indp. Prog.	U.S. House, dist. 5	2.13%
1948	Ernest T. Olson	Progressive	U.S. House, dist. 6	4.01%
1950	Verle F. Hemeke	Progressive	U.S. House, dist. 2	.64%
1952	James A. McDaniel	Progressive	U.S. House, dist. 1	.35%
1954	Henry Killman	Socialist Labor	U.S. House, at-large	.45%
1956	Henry Killman	Socialist Labor	Governor	.37%
1958	W. Frank Horne	Constitution	U.S. House, dist. 6	.66%
1960	Henry Killman	Socialist Labor	Governor	.71%
1962	Henry Killman	Socialist Labor	U.S. Senate	.50%
1964	Henry Killman	Socialist Labor	Governor	.35%
1966	Floyd Paxton	Conservative	U.S. House, dist. 4	7.63%
1968	Betty J. Hiegel	Conservative	U.S. House, dist. 6	1.04%
1970	Stephanie Coontz	Socialist Workers	U.S. House, dist. 1	2.64%
1972	Craig Honts	Socialist Workers	U.S. House, dist. 1	.65%
1974	Paul Roberts	U.S. Labor	U.S. House, dist. 2	1.33%
1976	Alan M. Gottlieb	Libertarian	U.S. House, dist. 1	1.88%
1978	Mel Tonasket	Independent	U.S. House, dist. 5	9.26%
1980	William McCord	Libertarian	U.S. House, dist. 2	3.57%
1982	Jayne H. Anderson	Independent	U.S. House, dist. 6	4.30%
1984	Gary Franco	Populist	U.S. House, dist. 2	2.83%
1986	Jill Fein	Socialist Workers	U.S. Senate	.67%
1988	Bill Simmons	New Alliance	Land Commissioner	3.52%
1990	William McCord	Libertarian	U.S. House, dist. 2	8.26%
1992	Tom Donnelly	Independent	U.S. House, dist. 6	6.08%
1994	Caitlin D. Carlson	Gun Control	U.S. House, dist. 3	3.44%
1996	Karen Leibrandt	Natural Law	U.S. House, dist. 2	3.72%
1998	Peggy S. McKerlie	Reform	U.S. House, dist. 4	6.45%
2000	Joel Grus	Libertarian	U.S. House, dist. 7	7.60%
2002	Rob Chase	Libertarian	U.S. House, dist. 5	5.13%
2004	Bruce Guthrie	Libertarian	U.S. House, dist. 2	2.52%
2006	Linnea S. Noreen	Independent	U.S. House, dist. 7	4.86%

Former Congressman John Rarick died on September 14, at the age of 85, in his home town of St. Francisville, Louisiana. He had been the American Independent Party’s presidential candidate in 1980. He had represented a Louisiana district between 1967 and 1975, and had endorsed George Wallace for President in 1968. In 1980 Rarick was on the ballot in 8 states, and received 41,268 votes.

Oregon permits qualified parties to change their names. Recently, the Peace Party changed its name to the Progressive Party. The Peace Party qualified for the ballot in 2008, and because it polled more than 1% of the vote for a statewide office that year, it is still ballot-qualified. The party was formed to help Ralph Nader get on the ballot, because at the time Oregon law made it easier to qualify a new party, than to get an independent candidate on.

There are now two states with a ballot-qualified party named "Progressive". The other state is Vermont.

Other one-state parties that nominated Ralph Nader for president last year, and that are still ballot-qualified, are in California, Connecticut, Delaware, Florida, Michigan, and New Mexico.

On September 9, Massachusetts Treasurer Timothy P. Cahill said he will run for Governor in 2010 as an independent. He was elected as a Democrat in 2006. Although the voters of Massachusetts have elected many independents to the state legislature in the last few decades, and elected an independent candidate to the U.S. House in 1972, the state has never elected an independent or minor party nominee to statewide office, at least since the Civil War.

On August 31, the Academy of Motion Picture Arts and Sciences said it will use Instant Runoff Voting to choose the Oscar winner for "best picture", starting in 2010. Earlier this year, the Academy had decided to nominate ten movies for that award, not just five. Apparently the Academy thought IRV would be a fair method to choose one winner from among ten nominees.

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