ILLINOIS 5% PETITION ENJOINED AS APPLIED TO U.S. HOUSE SPECIAL ELECTIONS

On February 1, U.S. District Court Judge John J. Tharp, Jr. enjoined Illinois from requiring independent candidates, and the nominees of unqualified parties, to obtain the signatures of 5% of the last vote cast, in special elections for U.S. House. Jones v McGuffage, 12-c-9997, northern district. The logic of the decision would apply equally to special legislative elections.

The case was filed and won by LeAlan Jones, the Green Party nominee for U.S. House, in the special election for the 2^nd district which is being held on April 9. An independent candidate in that same election, Marcus Lewis, intervened in the case and presented evidence that helped to win the case.

The legal requirement was 15,682 signatures, but Judge Tharp replaced that with 3,444 signatures. He ruled that it isn’t fair to expect candidates in special elections to come up with the normal requirement because special elections have a shorter petitioning period. Also, the ruling noted, special elections are caused by unanticipated events (such as the resignation or death of an incumbent), so candidates cannot plan their petition strategy far in advance.

The judge was also influenced by the fact that Illinois only required 5,000 signatures for minor party and independent candidates for U.S. House in 2012. The state has a unique law that sets a lower petition requirement for elections immediately following redistricting than for other years. The formula for determining that only 3,444 signatures would be needed in the special election was to start with 5,000 signatures, and then reduce it by the fraction 62/90. The normal petitioning period is 90 days, but in the special election only 62 days were permitted.

The state probably won’t appeal, although that is not a certainty. However, the state tried very hard to win this case, even asking that some of the testimony in favor of Jones and the Green Party be excluded. The judge denied the state’s request. That evidence showed that in all history for U.S. House elections, no candidate who tried to petition onto the general election ballot, and who then appeared on that ballot, ever met a petition requirement higher than 13,000 signatures. In the past in Illinois, some candidates got on the ballot for U.S. House when the requirement was greater than 13,000, but those were all instances when the petitions were not challenged. Illinois, alone along the states, will put a candidate on the ballot no matter how few signatures he or she submits, if no one challenges.

The ruling came down on February 1 and it said all the signatures would be due on the state’s deadline, which was February 4. No candidate actually collected as many as 3,444 signatures by that deadline, but no one challenged Marcus Lewis’s petition, so he is on the ballot as an independent candidate. The challenge to LeAlan Jones may be legally defective, but that has not been determined yet, so it is unknown if Jones will be on the ballot.

Other federal courts, in Florida and Georgia, have also ruled that in special elections, when the normal petitioning time is not available, the number of signatures must be reduced. But, those past decisions are not reported, which means that it is difficult for them to be used as precedents. It will be very good if Judge Tharp sends in his decision to be reported in the Federal Supplement.

On February 19, the Virginia legislature passed SB 690. It lowers the number of signatures for all presidential petitions from 10,000 signatures to 5,000 signatures. That means candidates petitioning for the presidential primary ballot, and also independent presidential candidates, and the presidential candidates of unqualified parties.

This is the first time any state’s legislature has lowered the number of signatures for minor party or independent candidates since 2011, when such bills passed in Idaho and New Mexico.

Also on February 19, the Virginia legislature passed SB 1049, which says that an inactive voter may sign a petition. An inactive voter is someone who is on the rolls but who hasn’t voted in at least four years.

On February 21, the Montana House State Administration Committee tabled HB 436, by a vote of 16-3. The bill would have converted Montana elections to a top-two open primary. It was introduced by Representative Scott Reichner, a Republican, and Montana has a Republican majority in both houses of its legislature. However, very few Republicans supported the bill.

At the hearing on February 19, Montana’s Secretary of State, Linda McCulloch, testified against the bill, and four members of the public also testified against the bill. Most of the opponents of the bill were Libertarian Party activists.

On February 20, the Oklahoma House Rules Committee unanimously passed HB 2134, which lowers the number of signatures for a newly-qualifying party from 5% of the last vote cast, to 5,000 signatures. Two years ago, when this same committee had an identical bill, it passed it but amended it to 22,500 signatures. The Senate then amended it to 5% of the last gubernatorial vote. Perhaps the House, which seems to be the branch of the legislature that believes in free competition, feels that the Senate is more likely to pass something better if the House itself doesn’t water down its own proposal before passing it.

Meanwhile, on February
15, the Senate Rules Committee passed SB 668, which makes no change in the number of signatures in presidential years, but lowers the number in midterm years. This is the same idea the Senate passed in 2011.

It is easy to make a case for reform. Oklahoma has not permitted voters to vote for anyone for President, other than the two major party nominees, at any time since 2000. Starting in 1988, there is no other state that has ever had just two presidential nominees on the ballot.

Alabama: on February 28, Senator Cam Ward (R-Alabaster) introduced a bill to lower the number of signatures for newly-qualifying parties and independent candidates from 3% of the last gubernatorial vote, to 1.5%. It also improves the deadline for newly-qualifying parties, from primary day, to three weeks after the run-off primary.

California: Senator Cathleen Galgiani (D-Stockton) has introduced SB 213, to repeal all residency requirements for petition circulators. The Secretary of State and county elections officials support the bill.

Connecticut: Representative Tim Bowles (D-Preston) has introduced HB 6098, to lower the number of signatures for statewide independent and unqualified party nominees from 7,500 signatures to 5,000 signatures.

Illinois: Representative Mike Fortner (R-West Chicago) has introduced HB 1269, which lowers the number of signatures for a statewide independent from 25,000 to 5,000, and lowers the number for district office independents from 5% of the last vote, to one-half of 1% for U.S. House; 1,000 for State Senate; and 500 for State House.

Kansas: HB 2130 repeals all residency requirements for petitioners. It passed the House on February 18.

New Mexico: Senator Howie Morales (D-Silver City) has introduced SB 218, which eliminates mandatory petitions for all candidates, and lets them qualify for the ballot with a filing fee.

New York: A1464, with 7 sponsors, deletes all residency requirements for petition circulators, except it retains the requirement that they be residents of the state.

North Carolina: on March 6, a bill will be introduced to lower the number of signatures for newly-qualifying parties and statewide independent candidates to one-fourth of 1% of the last gubernatorial vote, approximately 15,000 signatures.

Tennessee: Senator Jim Kyle, the leader of the Democrats in the State Senate, has introduced SB 1091, which lowers the number of signatures for newly-qualifying parties from 2.5% of the last gubernatorial vote to exactly 1,000 signatures. Representative Jason Powell has introduced the identical bill in the House, where it is HB 958.

West Virginia: five Delegates have introduced HB 2565, which makes it easier for a party to gain and keep qualified status. Current law says a "party" is a group that got 1% for Governor. The bill would expand that, to include a group that has at least 1,000 registered members.

AB 141, by California Assemblymember Jeff Gorell (R-Thousand Oaks), would make it more difficult for candidates to get on the November ballot for Congress and partisan state office. Under current law, the two candidates who receive the most votes in the June primary advance to the November election. But AB 141 would provide that write-ins candidates in the June primary who place second still can’t advance to the November ballot, unless the write-in candidate receives a number of votes equal to 1% of the vote cast for that office in the last general election.

If this bill had been in effect in November 2012, there would have been eight races with only one candidate on the ballot, instead of just two. There were eight races in 2012 in which only one person filed to be on the June primary ballot, but in six of them at least one write-in candidate filed a write-in declaration of candidacy. None of the write-in candidates in June 2012 received as many write-ins as AB 141 requires.

The only minor party candidates for any partisan office (other than President) on the November 2012 ballot in California were three Peace & Freedom Party members, all of whom filed as write-in candidates in the June primary.

In the general election, the three of them together polled 113,825 votes. Mary Catherine McIlroy polled 14.2% for State Senate in Alameda County; Lee Chauser polled 19.6% for State Senate in Los Angeles County; Eugene Ruyle polled 13.2% for Assembly in Alameda County. All three had a single Democratic opponent.

AB 141 probably violates the California Constitution, which says, "The top two candidates, as determined by the voters in an open primary, shall advance to a general election." Keeping someone off the November ballot who placed second violates this language.

Hawaii: the bill to allow write-in voting has already been defeated. The sponsor, Senator Les Ihara, was told by the Senate leadership that his bill (SB 223) would not pass, so he amended it to do something entirely different. The bill now makes it easier for political parties to keep candidates out of their own primaries. In that form it passed the Judiciary Committee on February 15.

Montana: HB 120, which makes several ballot access improvements, passed the House on January 31. It moves the independent candidate petition deadline from March to May, and makes it possible for an independent presidential or vice-presidential candidate to be on the ballot even if that candidate had run in a party primary within the preceding year.

Oklahoma: SB 76, which vastly increases candidate filing fees (typically tripling them), passed the Senate Rules Committee on February 20.

Wyoming: HB 96, which would have made it easier for a party to remain on the ballot, died because it did not receive a House floor vote by the deadline.

Colorado: SB 65, which would have let local governments use Approval Voting for their own elections, was defeated in a Senate Committee on February 6, by a vote of 3-2.

Kentucky: SB 55 would switch elections for statewide executive offices from the odd year before presidential elections, to presidential election years. On February 20 the bill passed the Senate State and Local Government Committee. Other states that elect Governors in odd years are Louisiana, Mississippi, New Jersey, and Virginia.

New Mexico: SB 276 restores the straight-ticket device. On February 20 it passed the Senate Rules Committee.

New York: four Democratic State Senators have introduced S839, to provide for public funding for state office. A gubernatorial candidate could not get public funding unless he or she raised at least $650,000 in private donations, from at least 6,500 people. Up to $250 per person would count toward the $650,000.

North Carolina: SB 82 abolishes the straight-ticket device. There are now bills to eliminate the device in four states; the others are Indiana, Iowa, and Rhode Island.

North Dakota: SB 2183 would make it illegal for anyone to circulate an initiative or recall petition unless he or she had lived in the state for at least two years. The bill passed the Senate on February 25. If it is signed into law, it will very likely be declared unconstitutional.

Pennsylvania: Senate Majority Leader Dominic Pileggi and twelve other Republican Senators have introduced SB 538, to divide the state’s presidential electors in proportion to the popular vote within the state. If this bill had been in effect in Pennsylvania in 1992, Ross Perot would have received 4 electoral votes, since he got 18% of the vote and at the time Pennsylvania had 23 presidential electors.

Pennsylvania (2): H
B 795 has been introduced by fifteen representatives. It would say that independents may vote in a party primary. Neither major party has ever let independents vote in primaries in this state in the past, even though the U.S. Supreme Court ruled in 1986 that a party with a primary may invite independents to vote in its primary, regardless of what state law says.

South Dakota: HB 1018 would make it possible for a ballot-qualified party to tell the state that it wishes to be removed from the ballot. This bill was probably introduced so that Americans Elect can remove itself from the 2014 ballot. It passed the House on January 18 but hasn’t yet had a hearing in the Senate.

Texas: HB 650 would require birth certificates for presidential candidates. On February 25 it was sent to the House Elections Committee, so it will probably receive a hearing.

Washington: on February 7, the House Government Operations & Elections Committee passed HB 1157, which changes the definition of a qualified party to a group that polled 5% for President. Current law says that it is a group that polled 5% for any statewide office at the last election, but parties no longer have nominees so the old definition doesn’t work for midterm years.

On February 13, the OSCE, the Office for Democratic Institutions and Human Rights, released its report on the U.S. election of November 2012. The U.S. is a member of OSCE and has pledged to honor the rights mentioned in the organization’s founding document.

The report criticizes severe ballot access restrictions in certain states, although the report does not name any particular states. See it at osce.org/odihr/elections/99573.

It recommends, "Federal and state authorities could reflect on the extent to which differences in candidate registration requirements affect the principle of equality of political rights of all citizens and the extent to which they comply with international standards. Consideration could be given to decreasing the number of required signatures for nomination of independent or third party candidates to a maximum of one per cent of the number of registered voters of a given district, in line with good electoral practice."

The report then cites to the 2002 Venice Commission Code of Good Practices in Electoral Matters, 1.3.ii, which recommends that "law should not require collection of the signatures of more than 1% of voters in the constituency concerned."

California: on February 13, the 9^th circuit heard arguments in Chamness v Bowen, 11-55316, over California’s ballot labels for congressional and state partisan office. The law says that if a candidate is a member of a qualified party, that party name will be printed next to the name of the candidate on the ballot. But if the candidate is not a member of a qualified party, he or she must have "no party preference" on the ballot. This label is untrue for members of unqualified parties, and is also untrue for independent candidates who, even while being independent, may prefer one party to other parties.

The plaintiff, Michael Chamness, wants to have either "Coffee Party" or "independent". The hearing went fairly well, with one of the three judges suggesting that the chief precedent relied on by the state to defend the law does not apply any longer. That precedent, from the California Supreme Court in 1980 in Libertarian Party of California v Eu, upheld an old law that said candidates who use the independent petition method can only use the word "independent." Judge Marsha Berzon said in 1980, party labels meant that the party had nominated the candidate in a primary, but under current law, no parties nominate, and therefore the logic of the 1980 precedent is now irrelevant.

Judge Paul Watford suggested that forcing a candidate to have "no party preference" is forced speech, for candidates who don’t feel that the label for them is true or desirable. The First Amendment protects people from being forced to speak, just as it protects their right to speak. A decision is likely in three to six months.

California (2): on February 14, the Peace & Freedom, Libertarian, and Green Parties filed an amended complaint in Rubin v Bowen, the case in which the three parties argue that the top-two primary system violates the rights of voters who wish to vote for minor party candidates in the election itself.

The amended complaint was filed to comply with the judge’s ruling of January 25. The new complaint documents the experience from June 2012, in which some minor party members polled as much as 19% of the vote in the primary, but none of them were permitted to run in the November election. The complaint also points out that the November election had 2.5 times as many voters as the June primary. A status conference in this case will be held in Oakland on March 4.

federal law: on February 19, the U.S. Supreme Court said it will hear McCutcheon v FEC, 12-536. The issue is the federal campaign finance law that says no one may donate more than $46,200 in any two-year period to all federal candidates combined. On February 25, the Court said it will not hear Danielczyk v FEC, 12-579, over the federal law that makes it illegal for a corporation to donate to a candidate to federal office. In both cases, the lower courts had upheld the law.

District of Columbia: the U.S. Supreme Court will consider on March 15 whether to hear Libertarian Party v D.C. Board of Elections, over whether election officials must count votes for declared write-in candidates for President.

Nevada: on March 11, the 9^th circuit will hear Townley v State of Nevada, 12-16881, over the law that says "None of these candidates" should be on primary and general election ballots for statewide office. The U.S. District Court had enjoined the law on the grounds that voters who vote for "None" are not being treated equally with voters who vote for candidates. This is because if "None" wins, there are no consequences and whichever candidate received the most votes is elected, even if "None" outpolled the candidate. However, the U.S. District Court order was then stayed by the 9^th circuit, so "None" appeared on the November 2012 ballot.

Pennsylvania: on January 25, the D.C. Court of Appeals denied Ralph Nader’s request that his bank be ordered not to turn over $56,928 to the people who challenged Nader’s Pennsylvania petition in 2004. Nader will probably ask the U.S. Supreme Court to review this decision. The funds are safe for 90 days, to give Nader time to file with the U.S. Supreme Court.

United States Gubernatorial Elections 1912-1931, by Michael J. Dubin, 295 pages, 2013, McFarland & Co, Jefferson, North Carolina.

It is a paradox that in the United States, which has thousands of history professors and thousands of po
litical science professors, the leading author of election returns data books from the nation’s past is a non-academic. Michael J. Dubin, virtually single-handedly, has given the nation the only reference books that contain the vote for President before 1824 (by county and state); the vote for Congress for all candidates for the nation’s entire history; and the vote for Governor for all candidates (by county and state) for the period 1776 through 1931. The latest book of gubernatorial election returns is the third one; the first book covered 1776-1860 and the second one covered 1861-1911. The new volume has the vote by county for each candidates except in a handful of instances with many candidates on the ballot, so that the lesser ones’ vote by county is lumped together in an "other" column.

Congressional Quarterly has also published election returns books for past elections, but unfortunately some of those books omit candidates who polled less than 5% of the vote, which makes it impossible to know the total vote cast in each race and even results in some major party candidates missing. The Dubin books are far more valuable.

STATE	REQUIREMENTS		SIGNATURES COLLECTED				DEADLINES
	FULL PARTY	CAND	LIB’T	GREEN	CONSTI	AMER ELE	Party	Indp.
Ala.	44,829	44,829	in court	in court	in court	0	in court	in court
Alaska	(reg) 9,015	#3,005	already on	*1,984	*100	0	June 1	Aug. 26
Ariz.	23,041	(est) #31,000	already on	(reg) 4,863	0	already on	Feb. 28	May 28
Ark.	10,000	10,000	0	0	0	0	April 12	May 1
Calif.	(reg) 103,008	65 + fee	already on	already on	260	already on	unsettled	March 7
Colo.	(reg) 1,000	#1,000	already on	already on	already on	already on	Jan. 8	July 10
Conn.	no procedure	#7,500	can’t start	already on	0	can’t start	– – –	Aug. 13
Del.	(est.) (reg) 650	(est.) 6,500	already on	already on	*414	unknown	Aug. 19	July 15
D.C.	no procedure	(est.) #3,900	already on	already on	can’t start	can’t start	– – –	Aug. 6
Florida	0	pay fee	already on	already on	already on	*0	Sep. 1	July 15
Georgia	54,697	#50,334	already on	can’t start	can’t start	0	July 8	July 8
Hawaii	706	25	0	already on	0	0	Feb. 20	June 10
Idaho	13,047	1,000	already on	0	already on	0	Aug. 3 0	March 14
Illinois	no procedure	#25,000	can’t start	can’t start	can’t start	can’t start	– – –	June 23
Indiana	no procedure	#34,195	already on	0	0	0	– – –	June 30
Iowa	no procedure	#1,500	0	0	0	0	– – –	Aug. 15
Kansas	16,776	5,000	already on	0	0	already on	June 2	Aug. 4
Ky.	no procedure	#5,000	can’t start	can’t start	can’t start	can’t start	– – –	Aug. 12
La.	(reg) 1,000	#pay fee	already on	already on	118	764	May 15	Aug. 15
Maine	28,639	#4,000	0	already on	0	0	Dec 12, 13	June 2
Md.	10,000	(est.) 40,000	already on	already on	0	already on	Aug. 4	Aug. 4
Mass.	(est) (reg) 43,000	#10,000	13,336	6,507	102	0	Nov. 5, 13	July 29
Mich.	32,261	30,000	already on	already on	already on	0	July 16	July 16
Minn.	146,829	#2,000	0	0	0	0	May 1	June 17
Miss.	be organized	1,000	already on	already on	already on	already on	April 4	April 4
Mo.	10,000	10,000	already on	0	already on	0	July 28	July 28
Mont.	5,000	#11,823	already on	0	0	0	March 13	unsettled
Nebr.	4,880	4,000	already on	0	0	0	Aug. 1	Aug. 25
Nev.	9,738	9,738	already on	0	already on	0	April 11	Feb. 7
N. Hamp.	20,779	#3,000	0	0	0	0	Aug. 6	Aug. 6
N.J.	no procedure	#800	0	0	0	0	– – –	June 3
N. M.	3,009	18,053	already on	already on	already on	already on	in court	June 24
N.Y.	no procedure	#15,000	can’t start	already on	can’t start	can’t start	– – –	Aug. 19
No. Car.	89,340	89,366	already on	0	0	0	in court	June 12
No. Dak.	7,000	1,000	0	0	0	0	Apr. 11	Sep. 5
Ohio	show support	5,000	already on	already on	already on	ambiguous	unsettled	May 5
Okla.	66,744	pay fee	in court	in court	0	0	in court	April 11
Oregon	17,760	18,279	already on	already on	already on	82	Aug. 26	Aug. 26
Penn.	no procedure	(est.) 25,000	can’t start	can’t start	can’t start	can’t start	– – –	Aug. 1
R.I.	17,115	#1,000	0	0	0	0	June 2	July 17
So. Car.	10,000	10,000	already on	already on	already on	*0	May 4	July 15
So. Dak.	7,928	3,171	already on	0	already on	already on	Mar. 25	June 3
Tenn.	40,042	25	0	0	0	0	Aug. 6	April 3
Texas	49,729	49,729	already on	already on	can’t start	can’t start	May 20	April 27
Utah	2,000	#1,000	already on	0	already on	0	March 1	March 17
Vermont	be organized	#500	already on	0	0	already on	Jan. 1	in court
Virginia	no procedure	#10,000	can’t start	can’t start	can’t start	can’t start	– – –	June 10
Wash.	no procedure	#pay fee	can’t start	can’t start	can’t start	can’t start	– – –	May 17
West Va.	no procedure	#6,603	already on	already on	0	0	– – –	Aug. 1
Wisc.	10,000	#2,000	already on	0	already on	already on	May 1	June 3
Wyo.	4,833	4,833	already on	0	already on	0	June 1	Aug. 25
TOTAL STATES ON			31	20	15	10*	“	`

#partisan label permitted (other than "independent").
"AMER ELE" = Americans Elect Party.

The Federal Election Commission has posted the presidential election returns from November 2012 for each candidate, by state. In a few months the FEC will publish a book of 2012 election returns for federal office. However, the returns still aren’t final. The West Virginia write-ins for president for th
e declared write-in candidates are missing from the FEC chart, as are the Pennsylvania write-ins. The FEC says it will keep updating the chart.

Pennsylvania does not have a declaration of write-in candidacy law. Therefore, all write-ins are valid, and the law requires that they be tallied, at least at the county level. Most counties did do a complete or a partial tally, but the state won’t aggregate the county results. But the state Elections Commission says any person is free to visit Harrisburg and do this work. A similar arrangement took place in Vermont, and some Green Party volunteers did canvass the Vermont presidential write-ins. The FEC accepted the tallying work from Vermont, after the Secretary of State acknowledged that the volunteers had done an accurate job.

Immediately after the November 2012 election, Americans Elect was still on the ballot in twelve states for the 2014 election. However, since then, Americans Elect has ceased to be a qualified party in Florida and South Carolina. In Florida the state let the party dissolve itself, and South Carolina invalidated it because it had not held the necessary county and state conventions to elect officers.

American Third Position, a party formed in 2011, has changed its name to American Freedom Party.

On February 19, Michigan state representative John Olumba declared that he is no longer a Democrat, and that he is now an independent. In Michigan, there is no question on the voter registration form asking about affiliation, so the only way an elected official can proclaim independent status is simply to announce it to the world. Olumba is the first independent state legislator in Michigan history, and the first Michigan legislator who is not a member of the Democratic or Republican Parties since the 1912-1914 session of the legislature, when there were 17 Progressive Party legislators.

The Independent Green Party of Virginia is a party that exists only in Virginia and is not affiliated with the national Green Party. For almost a decade it has placed more nominees on the ballot than any other third party in Virginia. Currently it is circulating petitions to place Bill Bolling on the November 2013 ballot as a candidate for Governor. Bolling is now the state’s Lieutenant Governor, elected as a Republican in 2009. He has said he will decide on March 14 whether to be an independent candidate for Governor this year. If he decides to run, the petitions collected by the Independent Green Party will make it easier for him to get on the ballot. He needs 10,000 valid signatures by mid-June. Virginia petitions for candidates to get on the general election ballot do not need to list the ballot label that will eventually be used; that is decided after the petition is complete.

Because Virginia permits substitution for all groups, even independent candidate committees, if Bolling decides not to run, the petition can be used for someone else.

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