MINOR PARTIES, INDEPENDENTS, ASK U.S. SUPREME COURT TO HEAR THREE IMPORTANT ELECTION LAW CASES

Minor parties and independent candidates recently asked the U.S. Supreme Court to hear three election law cases. If the Court agrees to hear even one of them, that will be significant. The Court has not accepted a cert petition filed by a minor party or independent candidate since 1996, when the Court accepted Chandler v Miller, filed by a Georgia Libertarian candidate to overturn a law mandating drug tests for candidates for state office. The Court ruled the Georgia law unconstitutional.

Georgia Ballot Access

The first of the three cases to be filed in the Court is Coffield v Kemp, 10-596. It was filed on November 2, and the Court will consider whether to hear the case at its January 14 conference. On December 6, an amicus curiae in support of the case was filed by the Center for Competitive Democracy, the Coalition for Free & Open Elections, and Free & Equal.

The case challenges the ballot access laws for minor party and independent candidates for the U.S. House. Those laws have existed virtually unchanged since 1964, and since 1964, no one has ever managed to use them. They require a petition signed by 5% of the number of registered voters, which can only be collected in the first half of even-numbered years. Petitions must be notarized, which is expensive, and anyone who does any notary work may not be a petitioner. The candidate must also pay a filing fee equal to 3% of the office’s annual salary, which is approximately $5,000 for U.S. House.

The Supreme Court has said three times that ballot access laws that are so difficult that they seldom are used are probably unconstitutional, in 1974, 1977, and 1986. A concurring opinion by Justice Antonin Scalia said the same thing in 2008.

Also, in 1968, the Supreme Court struck down all of Ohio’s ballot access laws for minor party and independent candidates, and yet even Ohio had had independent candidates for the U.S. House on the ballot during the years those laws existed. Such candidates for U.S. House qualified in 1952, 1954, and 1962. The years of harsh ballot access laws in Ohio were 1951-1968, and they required independent candidates for the U.S. House to submit a petition of 7% of the last gubernatorial vote. However, Ohio did not require petitions to be notarized, and said any adult citizen who lived in the district could sign, whether registered to vote or not, and required no fee.

The 11^th circuit had upheld the Georgia law on March 19, 2010, saying it could not reach any other decision because the U.S. Supreme Court had upheld the Georgia petition requirements in 1971, in Jenness v Fortson. The 11^th circuit said maybe the reason no one has succeeded in getting on the ballot since 1964 is because no one has tried. The amicus brief rebuts that suggestion.

Connecticut Public Funding

On December 9, the Court was asked to hear Green Party of Connecticut v Lenge, 10-795. The case challenges a law that says an independent candidate, or the nominee of a new party, cannot get full public funding without both raising many private contributions and submitting a petition signed by 20% of the last vote cast.

By contrast, members of parties that got 20% of the vote in the last gubernatorial election only need to raise the small contributions, and need no petition.

The U.S. District Court in this case had declared the law unconstitutional, but the 2^nd circuit had ruled 2-1 that it is constitutional.

The Supreme Court has only had one case in the past involving public funding. In 1976, it had upheld the presidential funding scheme, which awards primary season funds to any candidate seeking the nomination of any party (no matter how small) if that candidate raises $5,000 from each of 20 states. But in the general election, only nominees of parties that had polled at least 5% of the last presidential vote could receive public funding in advance of the election (but if the candidate polled 5%, he or she would then get general election public funding after the election was over).

The 2^nd circuit majority had reasoned that because the 1976 decision upheld some discrimination in public funding, therefore any type of discrimination, no matter how extreme, must be constitutional.

The Connecticut law also awards extra public funding to any major party candidate who only has a minor party or independent candidate, when that minor party or independent candidate succeeds in getting public funding. That aspect of the Connecticut law is vulnerable, since it seems likely that five members of the Supreme Court do not believe that publicly-funded candidates should ever get additional public funding just because of some characteristics of their opponents. On March 28, 2011, the Supreme Court will hear arguments in the Arizona public funding case, over the constitutionality of extra public funding for certain candidates. That case is McComish v Bennett, 10-239 and 10-238.

Hawaii Ballot Access

On November 30, Ralph Nader asked the U.S. Supreme Court to hear his Hawaii ballot access case, challenging the number of signatures. Nader v Cronin, 10-728.

The basis for the challenge is that the law is irrational, because it requires six times as many signatures for an independent presidential candidate as for an entire new party.

When a new party gets on the ballot in Hawaii, it is provided with its own primary, and it is very easy for that new party, or any qualified party, to run a candidate for any or all partisan offices in the state. Candidates only need 15 or 25 signatures (depending on the office) to get on a party primary ballot, and any voter can sign. Filing fees are only $75.

If the purpose of ballot access requirements is to keep ballots uncrowded, it is obviously absurd to require six times as many signatures for a single independent candidate, than for an entire new party, because a new party can put dozens of names on the ballot. But the lower courts shrugged off this argument. The 9^th circuit opinion, upholding the law, is only a few pages, and is unsigned.

Hawaii is not the only state with a law that is irrational. Florida requires 112,174 signatures for an independent presidential candidate, but lets a new party on the ballot with no petition. Maryland requires three times as many signatures for an independent statewide candidate as for an entire new party. Texas requires 40% more signatures for an independent presidential candidate than for either a new party, or an independent candidate for other statewide office. Alabama requires an independent candidate for U.S. House to submit more signatures than an independent presidential candidate.

On December 10, the 9^th circuit ruled that the Montana ballot access filed in 2008 is valid and should proceed. The case, Kelly v McCullough, challenges the March petition deadline for non-presidential independent candidates. The lower court had dismissed the case, saying the plaintiffs lack standing, but the 9^th circuit says they do have standing, and sent it back to the lower court.

Voter Turnout in the United States 1788-2009, by Curtis Gans. 881 pages, published 2011 by CQ Press.

This is the first scholarly book ever published that has turnout data for all presidential, congressional, and odd-year gubernatorial elections, for all of United States history. In 1975 the Census Bureau had published estimated turnout for presidential elections 1824 to the present, in Historical Statistics of the United States, part 2. Also, the Census Bureau, the Committee for the Study of the American Electorate, the United States Elections Project, and Election Data Services, have all made estimates of turnout for recent elections. But until now, there was no reference book for turnout data for such a broad scope of elections.

Voter Turnout in the U.S. even has turnout data for all statewide primary elections, including presidential primaries and primaries held for other important office. The data for primary elections makes this a very useful reference book, even for readers who are not interested in voter turnout per se. There appears to be no other reference book that enables anyone to know what year each state held primaries (for office other than President) and which also tells how many votes were cast in each party’s primary (again, for office other than President).

The author of this compilation faced a stunningly difficult job. Just to gather the primary returns from the 100 years in which many states have been holding primary elections is a major achievement. In many southern states, the parties conducted the primaries, which makes some data especially difficult to find.

But an even more overwhelming job is calculating the number of potentially eligible voters, through the nation’s history. Because each state has its own laws on who can vote, and these laws have changed drastically over the years, this is no easy task.

Laws that prevent ex-felons from registering to vote are a special problem. Also it is not easy to know how many eligible voters live permanently overseas, because the Census Bureau does not count them. And it is always tough to know how many people are citizens and how many are not. Also some southern states made it impossible, in practice, for blacks to register to vote until the mid-1960’s, and it is tough to calculate numbers for this as well.

This book would have been impossible to write, if the author, Curtis Gans, had not been devoted to the study of voter turnout ever since 1976. The price of the book, $200, will limit its circulation, but for those readers who would not be able to buy the book, it is a very good idea to ask your public library to purchase the book. The pages are eleven inches by nine inches. The book’s format is unusual; the longer dimension of each page is its width, not its height. That format is better for charts. The book weights 4.5 pounds.

The book contains no data about the number of registered voters. "Turnout" means the number of people who voted, divided by the number of people who were free to take steps to become voters.

Alaska: on December 22, the Alaska Supreme Court ruled that write-in votes need not be spelled correctly, if the voter’s intent can be ascertained. However, the Court also said that write-in votes are not valid if the voter forgot, or didn’t know, to fill in the oval next to the name. As a result of the decision, Lisa Murkowski has won the U.S. Senate election. Miller v Treadwell, S-14112.

California: on December 15, the State Supreme Court said it won’t hear Field v Bowen, the case that challenged the discriminatory policy on party labels under the new "top-two" system. Probably the Court wants to watch the case go through the Court of Appeals first; also the Court may assume the legislature will fix the problem.

Parties in the "Other(1)" column are: Alaskan Independence (Ak.), Peace and Freedom (Ca.), Working Families (Ct.), Free Energy (Hi.), Iowa Party (Ia.), Reform (Ks.), Grassroots (Mn.), Conservative (N.Y.), Moderate (R..I.), United Citizens (S.C.), Prohibition (Tn.), U.S. Marijuana (Vt.). Parties in the "Other(2)" column are Socialist Workers (Cal. and Iowa), Independent Party (Ct.), these parties in Minnesota: Ecology Democracy 6,180 and Resource 4,092, these parties in New York: Working Families 154,847, Rent is 2 Damn High 41,131, Taxpayer 25,820, Freedom 24,572, Anti-Prohibition 20,429, and in Vermont, Liberty Union.

Gub totals in 2006 were: Democratic 33,077,885; Republican 29,146,681; Green 900,455; Libertarian 447,203; Constitution 193,896; Independence 332,396; other parties 504,994; independents 1,753,556.

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.

Parties in the "Other(1)" column are: Peace & Freedom (Ca.), Reform (Co., Ks. and La.), Independent Party (Ct. and De.), Tea (Nv.), Socialist (Oh. and Vt.), Conservative (N.Y.), Progressive (Or.). Parties in "Other(2)" column are: Soc. Workers (Ca.), Ct. for Lieberman (Ct.), Independence (N.Y.), U.S. Marijuana (Vt.).

US Senate totals in 2008 were: Democratic 34,481,981; Republican 29,492,211; Libertarian 807,520; Green 436,600; Constitution 227,529; Independence 437,404; other parties 79,110; independent 224,934.

US Senate totals in 2006 were: Democratic 33,623,073; Republican 26,498,032; Libertarian 624,258; Green 386,088; Constitution 133,065; other parties 720,334; independent 939,928.

U.S. Senate totals in 2004 were: Democratic 43,630,378; Republican 39,956,419; Libertarian 770,185; Constitution 401,069; Green 157,533; Reform 22,599; Socialist Workers 16,753, other parties 1,044,293; independents 239,795.

U.S. Senate totals in 2002 were: Republican 21,593,229; Democratic 19,807,922; Libertarian 864,349; Reform 175,107; Green 129,475; Constitution 32,159; Natural Law 10,716; other parties 61,965; independents 300,464.

Parties in the "Oth(1)" column are: Peace & Freedom (Ca.); Independent Party (Ct. & De.); Tea (Fl. & N.J.); Socialist Workers (Ia.); Reform (Ks. & Ms.); Independence (Mn. & S.C.); .Conservative (N.Y.); Socialist (Vt.); Indp. Green (Va.).

In the "Oth(2)" column are: Socialist Action (Ct.); Blue Enigma (De.); Whig (Fl. & Va.); in New York, 118,540 Independence and 2,647 Socialist Workers; United Citizens (S.C.).

On December 14, Georgia Secretary of State Brian Kemp appointed 16 members to his Elections Advisory Council. They include Georgia’s independent legislator, Rusty Kidd, and Political Science Professor David Shock, a Libertarian activist. Last year Kidd authored a bill to eliminate petitions for minor party and independent candidates.

The Commission will hold public meetings all during 2011. These meetings will provide an excellent means for activists to raise the issue of ballot access. A somewhat similar committee in Florida also held many hearings in 1998, and at every meeting, someone in the audience raised the ballot access issue. As a result, Florida hugely improved its ballot access laws.

Here is a list of winners in November for federal and state office who weren’t nominees of either major party:

Governor: Lincoln Chafee, Rhode Island.

U.S. Senator: Lisa Murkowski, Alaska

State Senate: Harri Anne Smith, Alabama 29^th district; Bob Leeper, Kentucky 2^nd district; Edward J. O’Neill, Rhode Island 17^th district; Richard Woodbury, Maine 11^th district.

State Legislature, Lower House: Rusty Kidd, Georgia 141^st district; Ben Chipman, Maine 119^th district; Bert Jones, North Carolina 65^th district; Jenna Haggar, South Dakota 15^th district; Kent Williams, Tennessee 4^th district; Bob Ziegelbauer, Wisconsin 25^th district; and these in Vermont: independents Will Stevens, Addison-Rutland 1 district; Adam Greshin, Washington 1 district; and Progressive Christopher Pearson, Chittenden 3-4 district.

The Progressive Party elected six other legislators in Vermont, but they were all also Democratic nominees as well as Progressive nominees. They are Senators Anthony Pollina and Tim Ashe, and Representatives Susan Hatch Davis, Mollie Burke, Sarah Edwards, and Sandy Haas.

New York defines a qualified party as a group that polled at least 50,000 votes for Governor. The final New York election returns show that Warren Redlich, the Libertarian nominee, received 48,386 votes. That definition has been in the law since 1936, and that is the closest miss any group has ever experienced. Other near misses were the American Labor Party’s 1954 total (46,886), the Communist Party’s 1942 total (45,220), and the Right to Life Party’s 2002 total (44,195).

The European Union has tentatively approved an Initiative Process for itself. It would require 1,000,000 signatures. The signatures could be collected electronically. The initiative would also need a certain number of signatures from each of one-third of the member nations. The number from each country would vary, from 72,000 in Germany, to 4,500 in anyof the four smallest nations, Cyprus, Estonia, Luxembourg, and Malta.

On December 17, U.S. Senator Joseph Lieberman said that if he runs for re-election in 2012, he will again run as an independent. The U.S. Senate currently has three members who were elected even though they were not nominees of either major party: Lieberman in 2006, Bernie Sanders in 2006, and Lisa Murkowski in 2010. This is the first time since just before the 1942 election that the Senate has had that many members who were not major party nominees in their most recent election.

Americans Elect, a new political party that wants to run a presidential candidate in 2012, has already completed ballot access petitions in three states.

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