FEDERAL COURT STRIKES DOWN TWO NEW MEXICO BALLOT ACCESS LAWS, CALLS FOR MORE BRIEFING ON A THIRD LAW

On December 11, U.S. District Court Judge Judith C. Herrera, a Bush, Jr., appointee, struck down two sets of New Mexico ballot access laws. The case is Woodruff v Herrera, 09-449. The plaintiffs include the Green and Libertarian Parties, as well as some voters and candidates.

This is the first time since 1988 that any New Mexico ballot access law has been held unconstitutional. There was a court ruling in 2004 that construed New Mexico ballot laws favorably to independent presidential candidates, but the 2004 decision did not actually invalidate any law (the 2004 decision said that New Mexico could not keep an independent presidential candidate off the ballot on the grounds that he was a minor party nominee in other states).

The fact that the recent case has actually invalidated some laws means that it is likely that the 2010 legislature will pass a bill on ballot access, and perhaps that bill will contain other ballot access improvements as well.

Voter Address on Petitions

The first set of laws struck down are laws that describes how ballot access petitions should be signed. One law, 1-8-30(C), says the signer should list the address at which he or she is registered. But another law, 1-8-31(B), says the signer should sign the address at which he or she lives. Because the two laws contradict each other, the judge ruled the set of laws so vague as to be unconstitutional.

Although most voters are registered at their current address, between 5% and 10% of voters are typically not registered at their current address, because they have moved and haven’t re-registered yet. Therefore, given the contradictory New Mexico laws, circulators don’t know whether to tell people to list their address of registration or their current address.

Congressional Candidates Need Not be Registered Voters

The second set of laws struck down is much more interesting. Judge Herrera struck down two New Mexico laws that indirectly require candidates for Congress to be registered voters. Section 1-8-18 says, "No person shall become a candidate for nomination by a political party unless his record of voter registration shows his affiliation with that political party on the date of the governor’s proclamation for the primary election." Also, 1-8-45(C) says, "An independent candidate means a person who, except for a candidate for president or vice president, is a qualified voter registered to vote in New Mexico at the time of filing the declaration of independent candidacy." Finally, 1-8-45(D) says such candidates must not be registered members of a political party.

In 2000, in a Colorado case, the 10^th circuit had affirmed a U.S. District Court ruling that states may not require candidates for Congress to be registered voters. The rationale for the 2000 ruling is that states cannot add to the qualifications set forth in the U.S. Constitution, to be in Congress, or to run for Congress. That principle was proclaimed in 1995 by the U.S. Supreme Court, in a decision that struck down term limits for Congress, called U.S. Term Limits v Thornton.

.New Mexico is in the 10^th circuit, so on first blush, one might think the recent New Mexico ruling merely mirrors the Colorado decision from 2000. But, the new New Mexico decision goes further, and has interesting implications.

The Colorado case had been filed by a self-proclaimed independent candidate for Congress who was not registered to vote.

Therefore, the Colorado decision only said that independent candidates for Congress need not be registered to vote. Colorado continues to require party candidates for Congress to be registered to vote.

But, the recent New Mexico decision is broader. The unregistered plaintiff-candidate in the New Mexico decision, Daniel Fenton, didn’t say in his legal papers that wanted to be an independent candidate for Congress. He just said he wanted to be a candidate for Congress, without saying whether he wanted to be a major party nominee, a minor party nominee, or an independent candidate. As a result, the decision strikes down all New Mexico laws that require candidates for Congress to be registered voters. This is the first time that any court has ruled that states can’t require candidates for the nomination of a political party (for Congress) to be registered to vote.

In 2000, the 9^th circuit had ruled that California could not keep an unregistered voter off the ballot for Congress, in a case called Schaefer v Townsend. But, that was a special election, and in California, parties don’t have nominees in the first round, in special elections. California continues to insist that Congressional candidates in regular elections must be registered to vote.

Ballot Format Discrimination

One issue in the New Mexico lawsuit which is not yet settled is whether the state can give major parties a straight-ticket device on the November ballot, but not give such a device to minor parties. The judge has asked for more briefing on that matter. Before 2006, the Secretary of State gave all the parties a straight-ticket device, but in 2006 she arbitrarily removed it for minor parties, even though the law had not changed.

On December 18, U.S. District Court Judge Robert Holmes Bell, a Reagan appointee, struck down a Michigan law that says recall petitions can only be circulated by registered voters who live in the district of the official who is being recalled. The case is Bogaert v Land, 1:08-cv-687, western district.

This is the first time any residency requirement for circulators had been struck down in Michigan. Michigan also has laws requiring circulators for new parties, and for candidates, to be registered voters in the state. Also, Michigan requires initiative circulators to be state residents, but they don’t need to be registered.

Although the decision technically does not affect petitions other than recall petitions, in reality, it will be virtually impossible for Michigan to defend those requirements either. Michigan is in the 6^th circuit, and the 6^th circuit has already struck down residency requirements for circulators in Ohio.

The decision wasn’t surprising, because the same judge had issued an injunction against the law earlier. As a result of the injunction, the state had held a recall election against a state legislator, but the voters voted to keep that legislator in office.

Other states that still have residency requirements for some types of petition circulators are Arizona, California, Connecticut, Idaho, Kansas, Missouri, Montana, Nebraska, New Jersey, New York, North Dakota, Pennsylvania, Rhode Island, South Dakota, and Virginia. Lawsuits against residency requirements for circulators are pending in Arizona, Idaho, and Nebraska.

On January 8, the U.S. Supreme Court will consider whether to hear Doe v Reed, 09-559, the case from Washington state over whether the First Amendment protects the ability of people to sign petitions without having their names and addresses put up on an internet site.

On December 18, the 5^th Circuit ruled that the lawsuit Moore v Hosemann is not moot, and sent it back to the U.S. District Court for further proceedings. This is the case filed last year by Socialist Party presidential candidate Brian Moore, after the Mississippi Secretary of State refused to put him on the ballot because his presidential elector paperwork arrived ten minutes too late.

The U.S. District Court had said the case is moot, but the 5^th circuit said that election law cases like this are not moot, because every presidential candidate in the future needs to know what the precise deadline is for filing in Mississippi.

The law does not set an hour by which presidential electors must file their paperwork. Moore’s filing was at 5:10 pm on the last day. The Secretary of State said it should have arrived by 5 pm, but Moore argues that other Mississippi election law deadlines do have the hour specified in the code, but the code doesn’t set an hourly deadline for presidential elector filings. Therefore, Moore argues, the Secretary’s ruling that the deadline is 5 pm contradicts Article II of the U.S. Constitution, which says that only legislatures can write election rules governing presidential elections.

The 5^th circuit suggested to the U.S District Court that the case be sent to state court for a ruling on what the true deadline is. Then, the case could come back to federal court to determine the Article II issue.

State election officials have always accepted late paperwork when the Democratic or Republican Parties missed the deadline. Such instances happened to the Democrats in Iowa in 1964, to both major parties in Indiana in 1988, and to both major parties in Texas in 2008.

At times, elections officials have also accepted late filings from minor parties as well. For example, in 2008, New Jersey accepted late paperwork from the Constitution Party.

On November 16, U.S. District Court Judge J. Leon Holmes, a Bush Jr. appointee, ruled that the lawsuit Green Party of Arkansas v Daniels cannot be resolved without a trial. The lawsuit challenges the state’s law on how a party remains ballot-qualified. The state had tried to get the case dismissed, based solely on precedents, and argued that no evidence was needed.

Arkansas law says a party goes off the ballot after a presidential election, unless it polls 3% for President. The Green Party was removed from the ballot after the November 2008 election because Cynthia McKinney didn’t poll 3%. However, the Green Party in 2008 polled 20.5% for U.S. Senate, and elected a state legislator. The party argues that it has enjoyed a modicum of voter support and that it is irrational for the state to remove it.

The U.S. Supreme Court has never had a case on how a party remains on the ballot. Arkansas is in the 8^th circuit, and the 8^th circuit has never had such a case either.

On December 16, the ACLU filed a lawsuit against three Nebraska ballot access laws: (1) the county distribution requirement for statewide non-presidential independent candidates; (2) the ban on out-of-state petition circulators; (3) the law that says if a circulator is being paid, the petition must say in 16-point type, in red ink, "This petition is circulated by a paid circulator." The case is Citizens in Charge v Gale, 4:09-3255.

The case is on behalf of Donald Sluti, an independent candidate for Secretary of State in 2010. The 2007 session of the legislature changed the law so that he needs 50 signatures from each of 31 counties. The U.S. Supreme Court said in 1969 that county distribution requirements for statewide petitions violate "one person, one vote" principles.

Not Invited to the Party: How the Demopublicans Have Rigged the System and Left Independents Out in the Cold, by James T. Bennett. Hard Cover, 211 pages, Springer, 2009.

James T. Bennett, the author, is Eminent Scholar and William P. Snavely Professor of Political Economy and Public Policy at George Mason University. He has written over a dozen books and numerous scholarly articles. This book is a larger and more useful expansion of a book he pubished a year ago, called Stifling Political Competition.

Both books lambast ballot access laws, debate restrictions, and discriminatory campaign finance laws. However, this book has two other topics, both of which are unique. Bennett has a chapter on the ballot access laws of other industrialized nations that have free elections. Information of this type is very difficult to obtain.

Also, Bennett has an interesting chapter telling the history of minor party and independent presidential candidates in the 2008 presidential election. This surely is the first book to describe the interaction of the Ron Paul 2008 campaign for the Republican nomination, and the aftermath, in which Paul eventually endorsed Chuck Baldwin.

The last chapter points the reader to scholarly studies that show that when U.S. ballot access laws are lenient, minor parties and independents do get elected at a higher rate than in states in which the laws are restrictive. That chapter also surveys the attitudes of various well-known U.S. pundits about laws that discriminate against minor party and independent candidates.

Oakland, California, will use Instant Runoff Voting for its own elections in 2010. The voters had approved this in 2006, but implementation had been delayed until the vote-counting machines were ready.

Colorado: Rep. Kathleen Curry will introduce a bill to relax the law that says independent candidates may not be on the ballot if they had been members of a qualified party at any time during the year before filing.

Connecticut: the legislature held two special sessions recently, but did not change the discriminatory parts of the public funding law for candidates for state office. The Governor had asked the legislature to amend the law, because on August 27, a court had said the parts of the law that discriminate against independent candidates are unconstitutional. The 2^nd circuit will hear the state’s appeal on January 13.

Michigan: Senator Alan Cropsey is about to introduce a bill to make it possible for ballot-qualified parties to change their name, if the national party had already changed its name. This will enable the Michigan unit of the Constitution Party to be called the Constitution Party. In Michigan (but in no other state) it is still called the U.S. Taxpayers Party, which was the former name of the Constitution Party. The national party made that name change 10 years ago.

Missouri: Senator Joan Bray has introduced SB 679, which improves the procedure for new parties to get on the ballot. The current law doesn’t generally require the petition for a new party to list the party’s nominees. This enables groups to circulate the petition first, and then later decide whom to nominate. But, because of a typographical error in the law, such groups do need to put the name of their presidential candidate on the petition. The bill fixes that error.

New Hampshire: Representative Joel Winters has introduced HB 1264. It makes it easier for a group to qualify as a political party. The current petition is 3% of the last gubernatorial vote, which is over 20,000 signatures. The bill would change that to exactly 5,000 signatures. The bill also lowers the vote test from 4% to 2%, and provides that parties polling at least 2%, but under 4%, would nominate by convention, not by primary.

Ohio: both houses of the legislature have passed their own version of an omnibus election law bill. The Senate passed its version, SB 8, on December 9. However, SB 8 doesn’t make any changes to the ballot access laws for minor parties, even though those laws were held unconstitutional in 2006. The House version, HB 260, does make such changes. It doesn’t seem likely that either version will have passed both houses any time soon.

The California State Auditor is now accepting applications for members of the public who wish to serve on the commission that will draw the boundaries of state legislative districts in 2011. The California Citizens Redistricting Commission will be composed of 14 members, of which 5 may not be either Republicans or Democrats. To apply, go to http://www.wedrawthelines.ca.gov. The deadline is February 12, 2010.

Below is the largest vote total in each state for a write-in presidential candidate in the general election. Only eight states have never tallied write-in votes for any presidential candidate in November.

The Libertarian Party has a lawsuit pending to force the District of Columbia Board of Elections to count the write-in votes for Bob Barr, from last year’s election. The Board has a procedure for write-in presidential candidates to file a list of presidential elector candidates, and Barr followed this procedure. But, the Board still says it has no obligation to count such write-ins, because it would be too much bother and expense to do so. The chart shows that in the past, some presidential candidates have received a significant write-in vote in certain states. The best percentage for a write-in presidential candidate in November was in Idaho in 2000, when Ralph Nader received 2.45% of the total presidential vote.

State	Candidate	Write-in Total	Year	Party, if any
Alabama	Eugene McCarthy	99	1976	independent
Alaska	Eugene McCarthy	473	1976	independent
Arizona	Ralph Nader	2,062	1996	Green
Arkansas	John Schmitz	3,016	1972	American
California	Eugene McCarthy	58,412	1976	independent
Colorado	Thomas J. Anderson	397	1976	American
Connecticut	Eugene McCarthy	3,759	1976	independent
Delaware	Ralph Nader	156	1996	Green
Dist. of Columbia	none ever counted	- -	- -	- -
Florida	Ralph Nader	4,101	1996	Green
Georgia	Ralph Nader	13,273	2000	Green
Hawaii	write-ins always banned	- -	- -	- -
Idaho	Ralph Nader	12,292	2000	Green
Illinois	John Schmitz	2,471	1972	American
Indiana	Ralph Nader	18,506	2000	Green
Iowa	none ever counted	- -	- -	- -
Kansas	Ralph Nader	914	1996	Green
Kentucky	Ralph Nader	701	1996	Green
Louisiana	none ever counted	- -	- -	- -
Maine	Bob Barr	251	2008	Libertarian
Maryland	Ralph Nader	2,606	1996	Green
Massachusetts	Ralph Nader	4,565	1996	Green
Michigan	Ralph Nader	2,322	1996	Green
Minnesota	Alan Keyes	22	2008	America’s Independent
Mississippi	none ever counted	- -	- -	- -
Missouri	John Schmitz	3,428	1972	American
Montana	Eugene McCarthy	460	1976	independent
Nebraska	none ever counted	- -	- -	- -
Nevada	write-ins always banned	- -	- -	- -
New Hampshire	Michael Badnarik	341	2004	Libertarian
New Jersey	William Lemke	9,407	1936	Union
New Mexico	Eugene McCarthy	1,162	1976	independent
New York	Earl Browder	11,321	1940	Communist
North Carolina	Ralph Nader	2,108	1996	Green
North Dakota	Earl Dodge	7	1988	Prohibition
Ohio	Dick Gregory	372	1968	Peace and Freedom
Oklahoma	write-ins always banned	- -	- -	- -
Oregon	Roger MacBride	464	1976	Libertarian
Pennsylvania	Ralph Nader	3,086	1996	Green
Rhode Island	Eugene McCarthy	479	1976	independent
South Carolina	Eugene McCarthy	289	1976	independent
South Dakota	write-ins always banned	- -	- -	- -
Tennessee	David Cobb	33	2004	Green
Texas	John Schmitz	6,039	1972	American
Utah	David Cobb	39	2004	Green
Vermont	Cynthia McKinney	66	2008	Green
Virginia	Ralph Nader	2,393	2004	independent
Washington	David Duke	180	1988	Populist
West Virginia	Eugene McCarthy	131	1976	independent
Wisconsin	Michael Peroutka	869	2004	Constitution
Wyoming	Ralph Nader	4,625	2000	Green

STATE	REQUIREMENTS		SIGNATURES COLLECTED				DEADLINES
	FULL PARTY	CAND	LIB'T	GREEN	CONSTI	WK FAM	Party	Indp.
Ala.	37,513	37,513	100	0	0	0	June 1	June 1
Alaska	(reg) 9,786	#3,128	*already on	*2,524	0	0	June 1	Aug. 24
Ariz.	20,449	(est) #25,500	already on	*16,000	*1,600	0	Feb. 25	May 25
Ark.	10,000	10,000	0	0	0	0	June 30	May 3
Calif.	(reg) 88,991	173,041	already on	already on	in court	0	Jan. 6	Aug. 6
Colo.	(reg) 1,000	1,000	already on	already on	already on	0	June 1	June 15
Conn.	no procedure	#7,500	already on	already on	can’t start	can’t start	- - -	Aug. 11
Del.	(est) (reg) 300	(est) 6,200	already on	already on	already on	already on	Aug. 10	July 15
D.C.	no procedure	#3,000	can’t start	already on	can’t start	can’t start	- - -	Aug. 25
Florida	be organized	pay fee	already on	already on	already on	0	Apr. 30	Apr. 30
Georgia	57,582	#44,089	already on	0	0	0	July 13	July 13
Hawaii	692	25	already on	*100	50	0	Apr. 1	July 19
Idaho	13,102	1,000	already on	can’t start	already on	can’t start	Aug. 27	March 19
Illinois	no procedure	#25,000	can’t start	already on	can’t start	can’t start	- - -	June 21
Indiana	no procedure	#32,742	already on	0	0	0	- - -	June 30
Iowa	no procedure	#1,500	0	0	0	0	- - -	Aug. 13
Kansas	16,994	5,000	already on	0	0	0	June 1	Aug. 2
Ky.	no procedure	#5,000	*0	*0	*0	*0	- - -	Aug. 10
La.	(reg) 1,000	pay $500	already on	already on	500	0	May 20	Aug. 20
Maine	27,544	#4,000	0	already on	0	0	Dec 11, 09	May 27
Md.	10,000	(est) 35,000	already on	already on	already on	0	Aug. 2	Aug. 2
Mass.	(est) (reg) 40,000	#10,000	already on	7,522	80	20	Feb. 1	July 27
Mich.	38,024	30,000	already on	already on	already on	0	July 15	July 17
Minn.	145,519	#2,000	0	0	0	0	July 20	July 20
Miss.	be organized	800	already on	already on	already on	0	April 9	April 9
Mo.	10,000	10,000	already on	0	already on	0	July 26	July 26
Mont.	5,000	#15,359	already on	0	already on	0	Mar. 18	Mar. 18
Nebr.	5,921	4,000	0	0	0	0	Aug. 2	Aug. 24
Nev.	9,083	9,083	already on	0	already on	0	June 11	Mar. 12
N. Hamp.	20,394	#3,000	0	0	0	0	Aug. 4	Aug. 4
N.J.	no procedure	#1,300	0	0	0	0	- - -	June 2
N. M.	4,151	16,764	*375	0	already on	0	Apr. 1	June 3
N.Y.	no procedure	#15,000	can’t start	can’t start	can’t start	already on	- - -	Aug. 17
No. Car.	85,379	85,379	already on	0	0	0	May 14	June 10
No. Dak.	7,000	#4,000	0	0	0	0	Apr. 9	Sep. 3
Ohio	unsettled	5,000	*already on	*already on	*already on	0	unsettled	May 3
Okla.	73,134	pay fee	0	0	0	0	May 1	June 9
Oregon	20,640	(est) 19,000	already on	already on	already on	already on	Aug. 26	Aug. 26
Penn.	no procedure	* #19,056	can’t start	can’t start	can’t start	can’t start	- - -	Aug. 2
R.I.	23,589	#1,000	0	0	0	0	May 28	July 22
So. Car.	10,000	10,000	already on	already on	already on	already on	May 2	July 15
So. Dak.	8,389	3,356	0	0	already on	0	Mar. 30	June 8
Tenn.	in court	25	0	0	0	0	unsettled	April 1
Texas	43,991	43,991	already on	can’t start	can’t start	can’t start	May 24	May 10
Utah	2,000	#1,000	already on	0	already on	0	Feb. 15	March 15
Vermont	be organized	#500	already on	0	already on	*already on	Jan. 1	Sep. 10
Virginia	no procedure	#11,000	0	0	0	0	- - -	June 8
Wash.	no procedure	pay fee	0	0	0	0	- - -	May 15
West Va.	no procedure	*#7,250	0	already on	0	0	- - -	May 10
Wisc.	10,000	#2,000	already on	already on	can’t start	can’t start	June 1	July 13
Wyo.	4,988	4,988	already on	0	*2,800	0	June 1	Aug. 23
TOTAL STATES ON			29*	17*	17*	5*	``	`

#partisan label is permitted on the ballot (other than "independent").
Mississippi, New Jersey, Virginia, and West Virginia have no statewide race in 2010, so the entry is for a full slate of U.S. House nominees.
*change from the Nov. 1 2009 chart.

On December 16, a U.S. District Court in New York ruled that the 2008 national convention of the Reform Party, held in Texas, was a valid national convention. Therefore, the national officers of the party are: Chair David Collison, Vice-Chair Rodney Martin, Secretary Janelle Skinner-Weill, and Treasurer Beverly Kennedy.

The Texas convention held been held under the direction of a court-appointed parliamentarian, Kay Crews. Even though all factions had been invited to that convention, one faction for the most part did not participate. Later, that faction, based in New York, had filed a lawsuit in New York state court to invalidate the Texas convention. That case had been removed to federal court, and the federal court sided with the Texas defendants. The federal case was MacKay v Crews, eastern district, 09-cv-2218.

It appears that the New York faction has accepted the ruling. That faction removed its Reform Party webpage the day after the ruling, and did not put out any press releases about the outcome. The New York faction’s national chair had been Bobby Kalotee. That faction included the leadership of the New York state Independence Party.

The Reform Party is still ballot-qualified in Florida, Kansas, Louisiana, and Mississippi. It still owes the Federal Election Commission approximately $330,000, for an overpayment made to the party for its 2000 convention. At the time the party was entitled to public funding because it had polled over 5% for president in 1996.

On November 23, the Northern Mariana Islands, a U.S. Commonwealth, held a run-off gubernatorial election. The Covenant Party nominee, incumbent Benigno Filial, defeated the Republican Party nominee, Heinz Hofschneider, by a margin of 52%-48%. The Covenant Party had won the preceding gubernatorial election as well.

The Virginia Board of Elections recently counted another 105 votes for president from November 2008. They were ballots that had arrived from overseas, and the state had said they were invalid because they had arrived too late. But a federal judge had ruled in McCain-Palin 2008 v Cunningham, e.d.3:08cv-709, that they should be counted. The results were: John McCain 53, Barack Obama 49, Bob Barr 1, miscellaneous write-ins 2.

The Virginia Board of Elections still hasn’t altered its election returns to reflect these votes. Also, the main reference books that print election returns have mostly already been printed, so these ballots will mostly be lost to history.

On December 15, the New York State Board of Elections released the official tallies for the November 3, 2009 special election for U.S. House, 23^rd district. The results: William Owens, 66,548 as a Democrat and 6,589 on the Working Families line, total 73,137. Douglas Hoffman, Conservative, 69,553. Dede Scozzafava, 7,260 votes as a Republican and 1,322 on the Independence Party line, total 8,582.

The Conservative Party’s share of the vote, 45.98%, was the best showing for a minor party in a U.S. House race since 1949, when the Liberal Party of New York elected Franklin D. Roosevelt, Jr., with 50.68%, in a special election.

The December 1, 2009 B.A.N. listed seven Green Party candidates who won partisan elections on November 3, 2009. However, that list was incomplete. Two other winners of partisan elections were: Randi Peters for Maidencreek Township Auditor, Bucks Co., Pennsylvania.; and Charles Farley for Inspector of Elections, Hanover Borough, York Co., Pennsylvania. Both candidates won on write-in votes.

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