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August 2014 Ballot Access News Print Edition

Ballot Access News
August 1, 2014 – Volume 30, Number 3


This issue was printed on white paper.



Table of Contents

  1. THIRD CIRCUIT SAYS MINOR PARTIES HAVE STANDING TO CHALLENGE PETITION-CHECKING SYSTEM
  2. ARIZONA CONCEDES THAT ONE BALLOT ACCESS LAW IS VOID
  3. OREGON VOTERS WILL VOTE ON TOP-TWO
  4. SIX NEW BALLOT ACCESS CASES FILED
  5. OTHER NEW LAWSUITS
  6. NEW HOPE FOR OHIO LIBERTARIANS
  7. OTHER LAWSUIT NEWS
  8. SENATOR SCHUMER’s OP-ED FOR TOP-TWO
  9. BRITISH PROPORTIONAL REPRESENTATION BALLOT
  10. 2014 PETITIONING FOR STATEWIDE OFFICE
  11. SPECIAL FLORIDA ELECTION, US HOUSE
  12. INDEPENDENT MARIANNE WILLIAMSON SPENT $1,934,466 ON CONGRESS RUN
  13. BOB BARR LOSES REPUBLICAN PRIMARY
  14. REPUBLICAN NOMINEE FOR OREGON GOVERNOR GETS INDEPENDENT PARTY NOMINATION
  15. NO REPUBLICANS RUN IN TWO-THIRDS OF MASSACHUSETTS DISTRICTS
  16. EXCELLENT ELECTION RETURNS BOOK FOR SALE AT BARGAIN PRICE
  17. ERRATA
  18. SUBSCRIBING TO BAN WITH PAYPAL

THIRD CIRCUIT SAYS MINOR PARTIES HAVE STANDING TO CHALLENGE PETITION-CHECKING SYSTEM

TEN YEAR NIGHTMARE LIKELY TO END

On July 9, the Third Circuit ruled that the Constitution, Green, and Libertarian Parties do have standing to challenge the Pennsylvania method for checking ballot access petitions. Constitution Party of Pennsylvania v Aichele, 13-1952.

This is the first ballot access victory in the Third Circuit since 2003. The Third Circuit includes Pennsylvania, New Jersey, and Delaware. In 2003 the Third Circuit had struck down Pennsylvania’s mandatory candidate filing fees, in Belitskus v Pizzingrilli, a case filed by the Green Party. In the eleven years since then, the Third Circuit has ruled against minor parties four times, either on the merits, or on standing.

The July 9 decision was 2-1. Judge Kent Jordan, a Bush Jr. appointee, wrote the decision. It was co-signed by Judge Jane Roth, a Bush Sr. appointee. The "no" vote was by Judge Thomas Ambro, a Clinton appointee.

The Pennsylvania system for checking ballot access petitions puts petitioning groups at risk of paying up to $110,000 in court costs if their petitions don’t have enough valid signatures. The first victim of this system was Ralph Nader, in 2004. His petition was rejected (even though it had twice as many signatures as the requirement) and he was assessed $86,000. A similar amount was assessed in 2006 against the Green Party’s nominee for U.S. Senate, Carl Romanelli.

In 2010, the minor parties were threatened with paying similar amounts, so they withdrew all their statewide petitions. Pennsylvania, New Mexico, and Alabama are the only states that have had a Democratic-Republican ballot monopoly for both previous midterm years, 2006 and 2010, for all statewide office.

The three parties had filed a case against this system in 2009, a year in which they did not petition (Constitution Party v Cortes). But the U.S. District Court and the Third Circuit both ruled that they didn’t have standing. In the current case, the same U.S. District Court Judge, Lawrence Stengel, had again ruled that the parties don’t have standing, but his decision has now been reversed.

Because the Third Circuit already ruled in 2003 that a filing fee of even $100 is unconstitutional for candidates who can’t afford to pay it, it is very likely that the current challenge system is also unconstitutional. The U.S. Supreme Court has ruled four times that voters and candidates cannot be forced to pay money to exercise voting rights, if they can’t afford it. Two cases dealt with poll taxes, and two with candidate filing fees.

Pennsylvania says it may ask for a rehearing in the Third Circuit, and has obtained an extension until August 6 to decide whether to do that.

Judge Thomas Ambro, who voted against the parties, has an erratic record in ballot access cases. On September 13, 2011, he and one other judge ordered that Carl Lewis be placed on the New Jersey ballot as a Democratic Party nominee for state legislature (Carl Lewis is a well-known Olympic star and he probably would have been elected if he had been on the ballot).

But nine days later, the same judges had to recant their earlier order, after it was pointed out to them that the U.S. Supreme Court had already determined that duration of residency requirements (which Lewis had challenged, because he hadn’t lived in New Jersey long enough) for state candidates are constitutional.


ARIZONA CONCEDES THAT ONE BALLOT ACCESS LAW IS VOID

On July 24, attorneys for the Arizona Secretary of State conceded that one ballot access law is unconstitutional, and asked that a U.S. District Court Judge invalidate it. That law is the distribution requirement for statewide primary petitions.

Candidates seeking a place on a statewide primary ballot need the signatures of one-half of 1% of the party’s members. That law was not challenged. But, they also need to obtain one-half of 1% in each of at least three counties. The county distribution requirement will now be struck down. Arizona Public Integrity Alliance v Bennett, 2:14cv-1044.

The county distribution requirement has existed since Arizona became a state in 1912.

The U.S. Supreme Court ruled in 1969 that county distribution requirements for statewide petitions are unconstitutional, because counties have widely differing populations. It has taken decades for all of these laws to be overturned, however. The only remaining distribution requirement for statewide candidate petitions is in Pennsylvania, where primary candidates for some office need signatures from ten counties.


OREGON VOTERS WILL VOTE ON TOP-TWO

Two initiatives circulated in Oregon this year for a top-two system. The measure that imitates the system used in Washington and California qualified for the ballot. The alternate one, which was the same except that Approval Voting would have been used in the primary, did not qualify.


SIX NEW BALLOT ACCESS CASES FILED

Georgia: on July 29, Jeff Amason, the only Libertarian who petitioned this year for the legislature, filed a lawsuit in state court to get on the November ballot. Even though he collected the signatures of 5% of the voters in House district 21, his petition was ruled invalid because his wife notarized most of the sheets, and she unfortunately circulated a few sheets herself. Amason argues that the law permits corporate officers to notarize documents for the corporation, and his campaign is incorporated, and his wife is a corporate officer, so her notarization work is valid. Amason v Kemp.

Illinois: on July 15, the Green Party filed a lawsuit against three laws: (1) the "binder check" process, which expects petitioning groups to furnish twelve individuals who will work for eight hours, at least five days, to help the state decide if the petition is valid; (2) the law that forces an unqualified party to run a full slate of candidates; (3) the law that won’t let petitioning start until March of the election year; (4) the rule that each sheet be notarized. Summers v Smart, n.d., 1:14cv-5398. The case has oral argument on August 13, and is assigned to U.S. District Court Judge John Tharp. Judge Tharp ruled favorably in 2013 in another Green Party ballot access lawsuit, Jones v McGuffage. That decision struck down the 5% petition requirement for district office, in special elections.

New Hampshire: on July 22, the Libertarian Party filed a federal lawsuit against the law passed earlier this year that makes it illegal to circulate the party petition in odd years. Libertarian Party v Gardner, 1:14cv-322. The party petition requires signatures equal to 3% of the last gubernatorial vote. It is so difficult, it has only been used twice, in 2000 and 2012. The Libertarian Party, which did both petitions, started the 2000 petition in April 1999 and took over a year to finish; the 2012 petition was started in August 2011 and also took a year to finish.

New Mexico: on July 3, independent candidate James T. Parker filed a federal lawsuit against the law that requires independent candidates to submit a petition of 3% of the last gubernatorial vote. Parker is running for Public Education Commission, a partisan office elected by districts. He points out that if he had been the nominee of a minor party, he would only have needed a petition of 1% of the last gubernatorial vote. Courts in Alabama, Florida, and North Carolina have ruled that it is unconstitutional to require independent candidates to get more signatures than minor party candidates. Parker v Duran, 1:14cv-617. Unless Parker gets on the ballot, there will only be one candidate, a Democrat, on the ballot. Parker is an incumbent by virtue of having been appointed last year, so this is his first election.

South Dakota: on July 23, the Constitution Party nominee for U.S. House, Charles W. Haan, filed a lawsuit against the law that required him to obtain 250 signatures of party members to get himself on the party’s June primary ballot. The party only has about 600 registrants, and they are the only voters who can sign. Haan v Gant. The case was assigned to U.S. District Court Judge Roberto Lange, who had upheld the same law in 2010 in a similar Constitution Party lawsuit. However, the 2010 lawsuit was marred by the fact that the plaintiff-candidate withdrew before the lawsuit was adjudicated. Judge Lange said none of the remaining plaintiffs had standing, but he then proceeded to uphold the 250-signature requirement anyway. The party appealed and the Eighth Circuit said the U.S. District Court, having found a lack of standing, should not have ruled on the merits, so the issue has a clean slate.

Tennessee: on July 30, the Libertarian Party filed a federal lawsuit to require the state to list its nominees on the ballot as "Libertarian", rather than "independent." The basis is that the law on how a new party gets on the ballot has been declared unconstitutional and the state has not enacted a new one. Lewis v Goins, middle district.


OTHER NEW LAWSUITS

Minor party and independent candidates filed these lawsuits recently against laws (other than ballot access laws) that discriminate against them:

Maine: on July 7, four donors who wish to contribute more than $1,500 to an independent candidate for Governor filed a federal lawsuit, challenging the law that lets donors give $3,000 to a candidate who runs for Governor in a primary, but only half as much for donors who want to give to an independent candidate. Woodhouse v Maine Commission on Governmental Ethics & Election Practices, 1:14-266.

Virginia: on July 2, some Libertarian Party candidates and an independent candidate filed a federal lawsuit against the law that puts the nominees of qualified parties first on the November ballot. Sarvis v Judd, e.d., 3:14cv-479. Similar lawsuits have won during the last decade in New Hampshire and Tennessee, and in earlier years in California and North Dakota.

Wyoming: on June 23, the Constitution Party nominee for Secretary of State and a donor who wants to contribute to him filed a lawsuit against the state law that allows donors to give to candidates running in a primary during the first half of the year, but won’t let donors give to candidates nominated in a convention (i.e., minor party candidates) until August of the election year. Wills v Mead, 2:14cv-126.


NEW HOPE FOR OHIO LIBERTARIANS

The lawsuit Libertarian Party of Ohio v Husted has so far failed to result in a restoration of the Libertarian Party’s ballot access for Governor this year. However, the case is very active, and that outcome is still possible. On July 24, the U.S. District Court ruled that the party’s attorneys are permitted to depose the individuals who challenged the party’s primary petitions, and also to depose the Secretary of State’s hearing officer who ruled against the party.


OTHER LAWSUIT NEWS

Alabama: on July 23, the Eleventh Circuit said Stein v Chapman needs oral argument, even though neither side requested it. This shows the three judges feel this is a close case. The issue is the March petition deadline in presidential years for newly-qualifying parties. Such parties nominate by convention, not primary, so there is no election-administration reason for an early deadline. Alabama requires 44,829 signatures.

Alaska: on June 24, the Ninth Circuit ruled 2-1 that the petitioner who challenged the ban on out-of-state circulators lacks standing. Raymond v Fenumiai. The plaintiff, Robert Raymond, had said he wants to work on Alaska initiatives. The court said he should have mentioned a particular initiative that he wants to work on.

Arizona: the Legislature has asked the U.S. Supreme Court to hear its appeal on whether independent redistricting commissions for Congress violate the U.S. Constitution. Az. Legislature v Az. Independent Redistricting Commission, 13-1314. The Court will consider whether to take this case on September 29.

California: all the briefs have now been filed in the State Appeals Court in Rubin v Bowen, District One, A140387. This is the minor party lawsuit against the top-two system. The minor parties’ reply brief, filed July 23, emphasizes that the case is about voting rights, not party rights.

Florida: on July 10, a lower state court invalidated the state’s U.S. House district boundaries. The State Constitution says the legislature can’t draw the lines to help or injure any party, but the trial court determined that the lines had been drawn to help Republicans. Pomo v Detzner.

Tennessee: the Sixth Circuit will hear the minor party ballot access case on August 7. The issue is whether the 2.5% petition (approximately 40,000 signatures) is constitutional, given that the state only requires 25 signatures for independent candidates. Green Party of Tennessee v Hargett, 13-5975.


SENATOR SCHUMER’s OP-ED FOR TOP-TWO

The July 22, 2014 New York Times carried an op-ed by U.S. Senator Charles Schumer (D-N.Y.), in support of top-two systems. The title is "End Partisan Primaries, Save America." The subtitle is "To reduce polarization, adopt California’s ‘top two’ voting model."

The piece perfectly epitomizes the flaw in most top-two advocacy. The advocates rarely do any research. They write about top-two systems as they imagine them to work, instead of taking the trouble to investigate how they actually work.

Senator Schumer’s presumption that a top-two system puts more moderate candidates in office has been rebutted by political scientists who have studied the system as it has worked since 1975 in Louisiana, since 2008 in Washington, and since 2011 in California. See some of the research at fivethirtyeight.com/datalab/chuck-schumer-is-wrong-about-the-top-two-primary. Or, see the front page article in the print edition of Ballot Access News, September 1, 2013 issue, which describes five scholarly studies that were published in 2013, authored by 14 political scientists.. Also see Professor Todd Donovan’s study of the Washington state top-two system, "The Top Two Primary: What Can California Learn from Washington?" pubished in Vol. 4, Issue 1 (2012) of The California Journal of Politics & Policy.

Senator Schumer writes, "in most states, laws prohibit independents from voting in primaries at all." Actually, only sixteen states don’t let independents vote in either Democratic or Republican congressional primaries (Colorado, Connecticut, Delaware, Florida, Iowa, Kentucky, Maryland, Nevada, New Jersey, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Wyoming). This can be verified by looking at America Votes 2012, a reference book by Rhodes Cook. Furthermore, even among those 16 states, five states let independents vote in primaries if they join such party at the polls on primary day.

Those five states are Colorado, Iowa, New Jersey, Rhode Island, and Wyoming.

Schumer deplores the results of the June 2012 Virginia Republican primary in which Eric Cantor was defeated. But Virginia has open primaries, in which any voter is free to vote in any primary. One wonders if Schumer knows that, because his example contradicts his thesis that letting independents vote in primaries thwarts victory by extremists.

Schumer asserts that California’s polarization was cured by top-two. What cured California’s troubled legislative process was Proposition 25, passed in November 2010. It repealed the law that required the budget to be approved by a two-thirds vote of the legislature. With only a majority now required for the budget, California Democrats were now free to pass any budget they wished, and gridlock was instantly cured. The California legislature is still heavily polarized, but that is no longer a major problem. Similarly, if one party controlled both houses of Congress and the presidency, and there were no filibuster process, polarization would not be a big problem in Congress.


BRITISH PROPORTIONAL REPRESENTATION BALLOT

Despite all the dissatisfaction with U.S. election, there is little discussion in the U.S. about moving to proportional representation. Great Britain does use that system for its elections for the European Parliament. The British ballot below is for those elections, held May 22, 2014.

Britain is divided into 12 districts for those elections. Britain elects 73 members. The UK Independence Party won 24 seats, Labour 20, Conservative 19, Greens 3, Scottish National 2, and one each for the Liberal Democrats, Sinn Fein, Democratic Unionist Party, Plaid Cymru, and Ulster Unionist.

Proportional representation completely solves the "wasted vote" and "spoiler" problems, and allows every group of substance to enjoy representation.

ballot-700


2014 PETITIONING FOR STATEWIDE OFFICE

STATE
REQUIREMENTS
SIGNATURES OR REGIS. OBTAINED
DEADLINES
FULL PARTY
CAND
LIB’T
GREEN
CONSTI
Wk Fam
Party
Indp.

Ala.

44,829

44,829

too late

too late

too late

too late

June 3

June 3

Alaska

(reg) 8,925

#2,975

already on

(reg)*1,774

*3,000

0

June 1

Aug. 19

Ariz.

23,041

#34,028

already on

in court

too late

too late

Feb. 28

May 28

Ark.

10,000

10,000

already on

already on

too late

too late

Jan 2

in court

Calif.

(reg) 103,004

65 + fee

already on

already on

too late

too late

Jan. 2

March 7

Colo.

(reg) 1,000

#1,000

already on

already on

already on

0

Jan. 8

July 10

Conn.

no procedure

#7,500

0

already on

0

already on

- – -

Aug. 6

Del.

(reg) 637

6,364

already on

already on

(reg) 380

(reg) 535

Aug. 19

July 15

D.C.

no procedure

(est.) #3,900

already on

already on

0

0

- – -

Aug. 6

Florida

0

pay fee

already on

already on

already on

too late

May 2

May 2

Georgia

50,334

#50,334

already on

0

0

0

July 8

July 8

Hawaii

706

25

already on

already on

too late

too late

Feb. 20

June 3

Idaho

13,102

1,000

already on

0

already on

0

Aug. 30

March 14

Illinois

no procedure

#25,000

*finished

*in court

*too late

too late

- – -

June 23

Indiana

no procedure

#34,195

already on

too late

too late

too late

- – -

June 30

Iowa

no procedure

#1,500

*900

0

0

0

- – -

Aug. 15

Kansas

16,776

5,000

already on

0

0

0

June 2

Aug. 4

Ky.

no procedure

#5,000

*6,000

0

0

0

- – -

Aug. 12

La.

(reg) 1,000

pay fee

already on

already on

(reg) 120

0

May 15

Aug. 22

Maine

(reg) 5,000

#4,000

*too late

already on

*too late

*too late

Dec 12, 13

May 25

Md.

10,000

37,293

already on

already on

0

0

Aug. 4

Aug. 4

Mass.

(reg) 42,391

#10,000

*too late

*finished

*too late

*too late

Nov. 5, 13

July 29

Mich.

32,261

30,000

already on

already on

already on

0

July 17

July 17

Minn.

146,297

#2,000

already on

already on

too late

too late

May 1

June 3

Miss.

be organized

1,000

already on

already on

already on

too late

March 3

March 3

Mo.

10,000

10,000

already on

0

already on

0

July 28

July 28

Mont.

5,000

#11,823

already on

too late

too late

too late

March 13

May 27

Nebr.

4,880

4,000

already on

0

0

0

Aug. 1

Sep 2

Nev.

(reg. or pet) 9,738

250

already on

in court

already on

too late

April 11

Feb. 6

N. Hamp.

20,779

#3,000

*250

0

0

0

Aug. 6

Aug. 6

N.J.

no procedure

#800

already on

0

0

0

- – -

June 3

N. M.

3,009

18,053

already on

*already on

already on

0

June 24

June 24

N.Y.

no procedure

#15,000

*9,000

already on

0

already on

- – -

Aug. 19

No. Car.

89,366

89,366

already on

too late

too late

too late

May 17

June 12

No. Dak.

7,000

1,000

already on

0

0

0

Apr. 11

Sep. 2

Ohio

27,905

5,000

already on

already on

already on

*too late

July 2

May 5

Okla.

66,744

pay fee

(already)

too late

too late

too late

March 3

April 11

Oregon

17,700

18,279

already on

already on

already on

already on

Aug. 26

Aug. 26

Penn.

no procedure

#16,639

*too late

*finished

*too late

*too late

- – -

Aug. 1

R.I.

17,115

#1,000

*already on

*too late

*too late

*too late

June 2

July 11

So. Car.

10,000

10,000

already on

already on

already on

already on

May 4

July 15

So. Dak.

7,928

3,171

already on

too late

already on

too late

Mar. 25

April 29

Tenn.

40,042

25

(already)

already on

already on

0

Aug. 6

April 3

Texas

49,729

49,729

already on

already on

too late

too late

May 26

June 26

Utah

2,000

#1,000

already on

too late

already on

too late

March 1

March 20

Vermont

be organized

#500

already on

too late

too late

already on

Jan. 1

June 12

Virginia

no procedure

#10,000

*already on

*too late

*too late

*too late

- – -

June 10

Wash.

no procedure

#pay fee

*too late

*too late

*too late

*too late

- – -

May 16

West Va.

no procedure

#6,516

already on

already on

*finished

*too late

- – -

Aug. 1

Wisc.

10,000

#2,000

already on

already on

already on

*too late

May 1

June 2

Wyo.

4,833

4,833

already on

0

already on

0

June 1

Aug. 25

TOTAL STATES ON
40*
23*
16
5
`

# label permitted (other than "independent").
"WK FAM = "Working Families".
*entry changed since May issue.
"Reg" = registrations.
"(already)" = party has placed a statewide nominee on the ballot, but party label is not allowed on ballot.


SPECIAL FLORIDA ELECTION, US HOUSE

On June 24, Florida held a special election for U.S. House, 19th district. The vote: Republican Curt Clawson 66.9%; Democrat April Freeman 29.3%; Libertarian Ray Netherwood 3.7%. When this same district had voted in November 2012, the vote had been: Republican 62.0%; Democratic 35.8%; independent 2.2%. The district is in southwest Florida and includes Fort Myers and Naples.

This was the first time a minor party candidate in this district had appeared on the ballot since 2000, when a Natural Law Party candidate ran.


INDEPENDENT MARIANNE WILLIAMSON SPENT $1,934,466 ON CONGRESS RUN

Marianne Williamson, independent candidate for Congress in California’s 33rd district, spent $1,934,466 on her 2014 campaign, according to her July 1 campaign spending report filed with the FEC. Nevertheless, the top-two system kept her off the general election ballot. She placed fourth, so she can’t continue to run.

She easily outspent her major party opponents. The two who will be on the November ballot are Democrat Ted Lieu, who spent $1,054,416; and Republican Elan Carr, who spent $631,335.

This year, the independent candidate for Congress who has spent the second highest amount of money on his campaign so far is Greg Orman, independent for U.S. Senate in Kansas. He has already spent $600,000 and, because he is on the November ballot, he will be raising and spending more in the coming months.


BOB BARR LOSES REPUBLICAN PRIMARY

On July 22, Georgia held a runoff Republican primary for U.S. House, 11th district. Former Congressman Bob Barr was defeated by a 2:1 margin by Barry Loudermilk, who is considered a "Tea Party" Republican. Barr was the Libertarian nominee for President in 2008.


REPUBLICAN NOMINEE FOR OREGON GOVERNOR GETS INDEPENDENT PARTY NOMINATION

Oregon permits two parties to jointly nominate the same candidate. On July 21, the ballot-qualified Independent Party announced that Dennis Richardson had won its privately-financed primary for Governor. Richardson is also the Republican nominee, so he will be on the November ballot as "Republican, Independent."


NO REPUBLICANS RUN IN TWO-THIRDS OF MASSACHUSETTS DISTRICTS

Massachusetts has nine U.S. House districts. This year, Republicans are running in only three of them. The culprit is the state’s severe ballot access law for U.S. House in primaries. Massachusetts requires more signatures for that office to get on the primary ballot than any other state. The requirement is 2,000 signatures, and only party members and independents can sign. A recent Boston Globe article discussed why there are so few candidates, but did not mention the ballot access law.


EXCELLENT ELECTION RETURNS BOOK FOR SALE AT BARGAIN PRICE

"United States Congressional Elections 1788-1997" is a 1,005 page reference book by Michael Dubin that sells for $409 from the publisher. However, while supplies last, Fairvote is selling copies for $20, and including shipping. To buy this book, which is the only book that lists all candidates for Congress in general elections, their vote, their party, and their percentage, send a check for $20 to Fairvote, to 6930 Carroll Ave., #610, Takoma Park Md 20912.


ERRATA

The July 1 BAN listed states in which the straight-ticket device has been repealed in the last fifty years, but forgot to list Wisconsin, which repealed it in 2011.


SUBSCRIBING TO BAN WITH PAYPAL

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