JUSTICE PARTY AND CONSTITUTION PARTY WIN INJUNCTIVE RELIEF IN CALIFORNIA BALLOT ACCESS DEADLINE CASE

On May 22, U.S. District Court Judge Percy Anderson issued an order enjoining the California Secretary of State from enforcing the January deadline for newly-qualifying parties to get on the ballot. The case was brought by the ACLU on behalf of the Justice Party and the Constitution Party. It is called California Justice Party v Bowen, 2:12cv-3956, central district.

It is likely that the Secretary of State will soon issue a regulation setting a much later deadline. Also, one particular Democratic Assemblyman has already expressed an interest in introducing a bill to ease ballot access for minor parties, and the proposed bill may be introduced soon.

This is the first constitutional ballot access case that a minor party or independent candidate has won against a California law since 1988. The injunction would not have been issued if the judge didn’t believe that the early deadline is probably unconstitutional.

The state had argued in court that the injunction should not be issued, because the Justice Party and the Constitution Party, so far, have made only feeble attempts to qualify. They are trying to qualify by meeting the requirement to have 103,004 registered members, and so far neither one of them has as many as 400 registered members. This was brought out in court. But, that alone was not enough to prevent the injunction from being issued.

Therefore, this case not only affects California; it sets a useful precedent that may help in pending cases against early deadlines in Alabama, Illinois, Montana, New Mexico, North Carolina, Oklahoma, and Vermont. It will also help a proposed lawsuit against the Hawaii deadline.

The California case had been filed on May 4, and the case had been expedited. Judge Anderson is a Bush, Jr. appointee. It is very unlikely that the state will appeal. There are no reported precedents that permit deadlines for newly-qualifying parties to be as early as January.

On May 3, the Missouri legislature passed HB 1236, a bill to ease ballot access for newly-qualifying parties that intend to run a presidential candidtae. The existing law says such a group must list its presidential nominee and its presidential elector nominees on the petition. The bill deletes this requirement. Assuming the Governor signs the bill, in the future, parties can circulate their petition in Missouri before they know who they will be running for President and Vice-President.

If this bill had passed last year, it would have especially helpful to Americans Elect, which did circulate a petition in Missouri last year, but which has never submitted the petition because its petition doesn’t list any nominees for President, Vice-President, or presidential elector.

On May 10, Governor Bill Haslam signed SB 3700, which moves the petition deadline for newly-qualifying parties from April to August. The bill only passed because earlier this year, a U.S. District Court had held the old deadline to be too early.

The bill does not lower the number of signatures, which remains at 2.5% of the last gubernatorial vote.

Washington State has been defending its top-two system ever since the voters passed that idea in 2004. In February 2012, the state’s only expert witness in favor of the top-two system, Political Science Professor Todd Donovan, published an article in the California Journal of Politics & Policy, called "The Top Two Primary: What Can California Learn From Washington?" The article is in Volume 4, issue 1. The synopsis says, "Whatever the cause of the changes, the partisan structure of Washington’s legislature appears unaltered by the new primary system." He also writes, in the conclusion, the change to a top-two system "did not create a legislature that looked different or functioned differently from the legislature elected under a partisan primary."

After the article was published, events in Washington state confirmed his conclusions. The legislature this year suffered from extreme partisanship, and was unable to pass the budget during the regular session. Two special sessions were required before the budget passed.

The top-two system was promoted in California because it supposedly would elect a legislature that would not be overly partisan.

Donovan is the only expert who testified in favor of top-two, in the ongoing Washington state lawsuit that is now pending in the U.S. Supreme Court. There is no contradiction between his article and his testimony. His testimony criticized the research done by the expert for the political parties.

Maryland: on May 21, the State Court of Appeals ruled that signatures on petitions are invalid if the signer doesn’t show the exact form of his or her name that is shown on the voter registration record. If the signer uses a middle initial in one place but not the other one, the signature is invalid. If the signer abbreviations a first name, or uses a common short-hand version of the first name (such as "Jim" for "James") on one record, but not the other one, the signature is invalid. The Court also said a signer whose first signature on the petition is invalid because of this technicality is forbidden from signing the petition again using the correct form of the name.

The case is Maryland State Board of Elections v Libertarian Party of Maryland, 2011-79. There is no philosophically sound basis for this decision. The decision can only be explained by the probability that the Court is hostile to various referendum petitions being circulated in Maryland, especially the one to suspend the state’s new law, making it possible for same-sex couples to wed. That referendum petition needs 55,736 valid signatures, and this ruling will make it difficult for the petition to succeed. Ironically, though, after the decision came down, a poll showed that even if the referendum gets on the ballot, it will lose and the voters will retain the same-sex marriage law.

The decision is harmful to all minor parties petitioning this year, except that the Americans Elect petition has enough valid signatures even under the new, restrictive standard. The Libertarian Party now must get another 2,734 valid signatures, and the Green Party needs another 3,020. The Constitution Party is so discouraged by this opinion it probably won’t even try to get on the ballot.

South Carolina: on May 2, the State Supreme Court ruled that non-incumbent candidates for state and local office must file both a written "Statement of Economic Interests" on the day they file for office, and also file it electronically on that day. As a result, close to 200 Republican and Democratic candidates in primaries were removed from the ballot. The case is Anderson v South Carolina Election Commission, 2012-211366.

Incumbents are exempt. Some of the candidates who were removed from the ballot had filed a Statement of Economic Interests by the March 30 deadline, either on-line or in writing with their party, but had not done both. They had been misinformed about the need to do both. Other candidates were misinformed about the deadline. The Election Commission had not enforced the law strictly, but then someone sued the Election Commission and forced it to disqualify almost 200 candidates. The decision is unanimous.

Some observers speculated that the Court was reluctant to rule in favor of the candidates, because the Court is at the mercy of the legislature for its funding.

Some of the bounced candidates will attempt to get on the November ballot as independents. However, independent candidates for district and county office need signatures of 5% of the number of registered voters. South Carolina’s petition requirement for district and county office is tied for the most difficult in the nation; only Georgia matches it, with North Carolina close behind.

On May 21, the U.S. Supreme Court refused to hear Illinois League of Women Voters v Quinn, 11-943. The League had argued that gerrymandering violates the First Amendment, a new theory, but one that did not prevail.

Georgia: on May 25, the Green and Constitution Parties sued Georgia over its restrictive presidential ballot access procedures, which require over 50,000 valid signatures, and also require notarization of each page. No statewide minor party or independent candidate petition has succeeded in Georgia since 2000. The only other state for which that is true is Indiana. The case depends partly on Bergland v Harris, an 11^th circuit opinion from 1985 that said presidential ballot access has more constitutional protection than ballot access for other office. The new case is Green Party of Georgia v State, 1:12-cv-1822.

Pennsylvania: on May 17, the Constitution, Green and Libertarian Parties filed a lawsuit in U.S. District Court in Philadelphia against the state’s system that requires petitioning candidates whose petitions are found invalid to pay between $80,000 and $100,000 in court costs. The case is Constitution Party of Pennsylvania v Aichele, 5:12-cv-2726. The same plaintiffs filed a similar case in 2009, but in that case, the judge said the parties lacked standing. In that earlier case, the parties were not currently petitioning, but this time they are all petitioning for the 2012 election.

Virginia: on May 14, the Libertarian Party sued to overturn the state’s ban on out-of-state circulators. The case is Libertarian Party of Virginia and Darryl Bonner v Judd, 3:12-cv-367.

Earlier this year, Virginia’s ban on out-of-district circulators was held unconstitutional, in Lux v Judd. That decision did not deal with the question of out-of-state circulators. The new case is assigned to Judge John Gibney, Jr., who said in an opinion earlier this year that the out-of-state ban is almost certainly unconstitutional. That was in a case filed by Republican presidential candidates. They filed their case too late to get injunctive relief.

In late May, the legislatures of Alabama and Oklahoma adjourned for the year. In both states, the ballot access reform bills made considerable headway, but failed to pass. In Alabama, SB 15 passed the Senate and passed the House committee, but it didn’t receive a vote on the House floor. In Oklahoma, HB 1058 passed both Houses, but the version of the bill in each house was different. A conference committee was appointed but it never met.

The Libertarian Party is about to sue Michigan Secretary of State Ruth Johnson, a Republican. She ruled on May 3 that she will not put Gary Johnson’s name on the November ballot (even though the Libertairan Party is ballot-qualified). Her basis is that Johnson’s name appeared on the February 28 Republican presidential primary ballot.

However, she said Johnson is free to petition as an independent candidate. That petition requires 30,000 signatures and is due July 19. Her basis is a law, passed in 1955, that says "No person whose name was printed or placed on the primary ballots as a candidate for nomination on the primary ballots of one political party shall be eligible as a candidate of any other political party at the election following the primary."

In 1980, John B. Anderson was on the ballot in the Republican presidential primary in Michigan, and yet he was permitted to appear on the November ballot as the nominee of the Anderson Coalition Party. The law has not changed since 1980.

The Secretary of State now says the state was forced to print Anderson’s name on the November 1980 ballot because the state at the time had no procedures for Anderson to be on the ballot as an independent.

Her statement is not only irrelevant; it is not true. Michigan did have procedures in 1980 for independent candidates to get on the November ballot. They had been created by a court in 1976. That procedure was for the independent candidate to prepare a petition, collect the same number of signatures as would be needed for a new party, and submit it. This is outlined in McCarthy v Austin, 423 F.Supp. 990.

Another reason the Secretary of State’s ruling is wrong is that the true candidates in November are the presidential elector candidates, and they aren’t "sore losers." Michigan has always recognized this principle. It has three times printed the names of presidential candidates on its November ballot who were under age 35, and the state knew they were under age 35 because they were very public about it. They were Linda Jenness in 1972, Andrew Pulley in 1980, and Larry Holmes in 1988.

Michigan is in the 6^th circuit, and in 1984 the 6^th circuit said in LaRouche v Austin that "a state’s interest in regulating a nationwide Presidential election is not as strong an interest in regulating intra-state elections; no state can single-handedly assure political stability in the Presidential context." The 6^th circuit ordered Michigan to print LaRouche’s name on the November ballot as an independent, even though he had run in that year’s Democratic presidential primary in Michigan.

Oklahoma: on May 18, U.S. District Court Judge Timothy DeGiusti set a June 7 hearing date in Libertarian Party of Oklahoma v Ziriax, the case that challenges the March 1 petition deadline for newly-qualifying parties. Both sides will present motions for summary judgment. If the law is held unconstitutional, it is virtually certain that the Libertarian Party will be placed on the ballot. The state has no precedents on its side, relative to the deadline issue.

Alabama: on May 22, the U.S. District Court Judge hearing the ballot access case filed by the Constitution, Green, and Libertarian Parties invited more evidence by June 15. He hinted that if the parties are working on their party petition, he will be inclined to enjoin the March petition deadline. The case is Stein v Chapman, 2:12-cv-42, middle district.

California: on May 9, the 9^th circuit heard Libertarian Party of Los Angeles County v Bowen, 11-55316. The issue is the law that forbids circulating candidate petitions outside the circulator’s home district, and also outside the home county. The Secretary of State’s position has been that she doesn’t enforce the law, but her web page implies that she does enforce it. The hearing went very well for the Libertarian Party. One of the three judges said to the attorney for the Secretary of State, "I suggest you advise your client to stop lying to the public."

North Carolina: on May 10, U.S. District Court Judge Graham C. Mullen refused injunctive relief against the state’s May 16 petition deadline for newly-qualifying parties. The case is North Carolina Constitution Party v Bartlett, 3:12-cv-192, western district. Judge Mullen said the case had been filed too late. It was filed on March 27. Plaintiffs will now ask for declaratory relief.

Ohio: the 6^th circuit will hear Libertarian Party of Ohio v Husted on July 24. This is the state legislature’s appeal of the decision late last year that put the Libertarian Party on the ballot in 2012. The Secretary of State did not appeal that decision, so the legislature intervened.

Tennessee: the 6^th circuit will hear Green Party of Tennessee v Hargett on July 25. The state is trying to reverse the decision of the U.S. District Court that the Constitution and Green Parties should be on the ballot in 2012, and is also trying to reverse the part of the decision that says each party must have an equal chance for the top spot on the ballot.

#partisan label permitted (other than "independent").
"AMER ELE" = Americans Elect Party.
*change since May 1 issue.

The Party for Socialism and Liberation is finished petitioning in Arkansas, New Jersey, and Vermont, and has paid the Colorado filing fee to be on for President.

The Justice Party has 600 signatures in Washington state, 1,000 in Texas, 200 in Pennsylvania, and approximately 50 in New Jersey and also Vermont.

The Socialist Party has 600 signatures in New Jersey and is on in Ohio.

The Reform Party has 300 signatures in Arkansas.

American Third Position has 315 signatures in New Jersey, and has paid the fee to be on in Colorado.

On May 5, the Libertarian Party nominated Gary E. Johnson of New Mexico for President, and retired Judge James P. Gray of California for vice-president. The chart on page four shows the roll call vote for the presidential and vice-presidential votes. The convention had delegates from every state except West Virginia. This is the first time the Libertarian Party presidential nominee is someone who has won statewide office, and the first time a two-term Governor has run for President as a minor party nominee since 1924.

The presidential vote included these write-ins: None of the Above 3, Sam Sloan 2, MaxAbramson 2, Ron Paul 1, Wayne Root 1. The vice-presidential vote included 6 votes for Jim Burns and 7 for None of the Above.

The American Independent Party, which is ballot-qualified in California, will hold a presidential convention in Sacramento on August 11. The exact location of the meeting is still not determined. It is possible the convention will nominate Virgil Goode for President; the convention organizers invited him, and he accepted.

Nebraska: held a Libertarian presidential primary on May 15. Results: Gary Johnson 93, Lee Wrights 22, Roger Gary 18, Carl Person 14, R. J. Harris 12, Bill Still 10.

North Carolina: held a Libertarian primary on May 8. Results: no preference 4,767, Gary Johnson 1,491, Lee Wrights 336, R. J. Harris 315, Roger Gary 301, Carl Person 261, Bill Still 221.

On May 17, Americans Elect said it will not run a presidential candidate. No one qualified to be listed on the party’s on-line presidential primary ballot. Such candidates needed 10,000 "clicks" on the party’s web page, with at least 1,000 from each of ten states.

Among the candidates seeking the Americans Elect, Buddy Roemer had the most "clicks". He had 6,293, followed by Rocky Anderson with 3,390, Michealene Risley with 2,351, and Laurence Kotlikoff with 2,027. No one else had as many as 600.

Among candidates that had been listed for a draft, Ron Paul had the most, with 9,498, followed by Jon Huntsman with 3,883, and Bernie Sanders with 2,716. No one else had as many as 2,000. Americans Elect voters were permitted to vote for as many candidates as they wished.

Americans Elect may yet decide to run some candidates for lesser office in certain states, so as to retain its ballot status for future elections. And even if it doesn’t, it will retain ballot status in 2014 in eleven states, assuming it takes minimal steps to remain organized in those states. In one of those states, California, it must also increase the number of people registered "Americans Elect" to one-fifteenth of 1% of the total state registration, which will be about 11,000 registrants. The other states are Arizona, Florida, Kansas, Maryland, Mississippi, New Mexico, South Carolina, South Dakota, Vermont, and Wisconsin.

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