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  Ballot Access News is edited and published by Richard Winger, the nation's leading expert on ballot access legal issues.

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Court Send Libertarian and Republican Campaign Finance Cases to All the Judges of the U.S. Court of Appeals, D.C. Circuit

Published on August 19, 2014,

On August 19, U.S. District Court Judge Christopher Cooper, an Obama appointee, issued a procedural ruling in Rufer v Federal Election Commission, and Republican National Committee v FEC. He sent both cases to the entire panel of full-time judges in the U.S. Court of Appeals, D.C. Circuit.

The issue in the two cases, which are separate cases on the same subject, is whether it is constitutional to limit individual expenditures to political parties if the parties will be spending the money on independent expenditures. Individuals can now give as much money as they wish to other groups that make independent expenditures; only political parties are barred from receiving unlimited donations for the purpose of making independent expenditures.

The U.S. District Court had three choices: (1) to dismiss the cases on the grounds that they are not substantial cases; (2) to send both cases to a 3-judge U.S. District Court; (3) to send the cases to the entire panel of full-time judges in the U.S. Court of Appeals, D.C. Circuit. The reason for this is that the 1976 campaign finance law, controlling how much money individuals can donate to candidates, is written to say that constitutional challenges to it must go to all the judges of the D.C. Circuit. By contrast, the 2002 campaign finance law, the McCain-Feingold law, which limits donations to political parties, says challenges to that law must be sent to a 3-judge U.S. District Court. Judge Cooper had to sift through these alternate approaches to decide which one applies. He chose the former. The attorneys in the Republican Party case had not even suggested the alternative that Judge Cooper chose, but the attorneys in the Libertarian Party case had suggested it.

This will be the first time since 1975 that any minor party or independent candidate has had a case before all the judges of the D.C. Circuit. The Libertarian Party has another case, Libertarian National Committee v FEC, over bequests, and the party has been waiting since April to learn if the bequest case will also go to the full D.C. circuit. Thanks to Rick Hasen for the link.

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Seven Candidates Likely to be on New York November Ballot for Governor

Published on August 19, 2014,

August 19 is the petition deadline for New York independent candidates, and the nominees of unqualified parties, for state office. Here is a link to the petitions filed for the November ballot. It seems likely that there will be seven candidates on the November ballot for Governor: Democratic incumbent Andrew Cuomo; Republican Rob Astorino Green Party nominee Howie Hawkins; Libertarian Michael McDermott; the nominee of the Sapient Party, Steven Cohn; Jimmy McMillan of the Rent is 2 Damn High Party; and Michael Carey of the Life & Justice Party..

The major party primaries are in September, so there is no absolute certainty that Cuomo will be the Democratic nominee. His Democratic opponent Zephyr Teachout has a strong campaign.

Here is the Sapient Party’s web page. The national chair is New Yorker Bobby Kumar Kalotee. In 2010 he was associated with a group that petitioned for New York statewide office as the Tea Party, but it did not get on the ballot. In 2008 he held himself out as the national chair of the Reform Party, and endorsed John McCain for president.

Here is a newspaper story
about the Life & Justice Party. The party wants to make abortion illegal and wants changes in how disabled persons are treated. This post has been re-written to include the McMillan and Carey candidacies, whose filings had not been posted on the New York State Board of Elections webpage when the original post was written.

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Kansas Poll

Published on August 19, 2014,

On August 19, Public Policy Polls released a poll for many Kansas statewide races. The U.S. Senate results are: Republican incumbent Pat Roberts 32%; Democrat Chad Taylor 25%; independent Greg Orman 23%; Libertarian Randall Batson 3%; undecided 17%.

The gubernatorial results are: Democrat Paul Davis 39%; Republican incumbent Sam Brownback 37%; Libertarian Keen Umbehr 9%; undecided 15%.

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Constitution Party Submits First Statewide Alaska Petition Since 2000

Published on August 19, 2014,

August 19 is the deadline for Alaska independent candidates, and the nominees of unqualified parties, to submit petitions. The Constitution Party is submitting approximately 4,400 for Governor and 4,300 for Lieutenant Governor. The requirement is 2,975. Assuming these petitions succeed, the Constitution Party will be on the statewide ballot for the first time in Alaska since 2000, when it petitioned for President.

In 2004 and 2008 the Constitution Party didn’t need to petition for President, because the Alaskan Independence Party, which has been ballot-qualified since 1983, nominated the Constitution Party’s presidential ticket. The Alaskan Independence Party did not do that for the Constitution Party in 2012, however.

The Constitution Party’s gubernatorial nominee is J. R. Myers. If he polls as much as 3%, the Constitution Party will be ballot-qualified for the first time.

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Third Circuit Rules that Philadelphia Police Must be Permitted to Contribute to their Own Union’s PAC

Published on August 19, 2014,

Since 1951, Philadelphia has had a charter provision that says, “No officer of member of the Philadelphia Police or of the Fire Department shall pay or give any money or valuable thing or make any subscription or contribution, whether voluntary or involuntary, for any political purpose whatever.”

In 2003, the part of this provision relating to firemen was struck down. On August 19, the Third Circuit also struck down the part that relates to police, at least as applied to the ability of police to contribute to their own union’s Political Action Committee. Here is the 57-page decision in Lodge Number 5 of the Fraternal Order of Police v City of Philadelphia, 13-1516. The decision acknowledges the corruption present in Philadelphia in 1951, when there were no civil service protections for city employees, and in some years 94% of all city employees made political contributions to the Republican Party, which had a machine in Philadelphia similar to similar Democratic machines in other big cities back then. The decision is by Judge Thomas Hardiman, a Bush Jr. appointee, and signed by Judges Anthony Scirica and Richard Nygaard, both Reagan appointees. Thanks to HowAppealing for the link.

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Lawsuit Filed to Challenge New Jersey Ballot Column Headings for Democratic and Republican Parties

Published on August 19, 2014,

On August 14, an unqualified party in New Jersey, the D-R Party, filed a lawsuit in state court in Trenton called D-R Political Organization v Guadagno. The lawsuit argues that the Secretary of State and county election officials are unlawfully ignoring New Jersey election law 19:5-1, which says, “No political party which fails to poll 10% of the votes cast in the State for members of the General Assembly at the next preceding general election, held for the election of all the members of the General Assembly, shall be entitled to have a party column on the official ballot at the general election for which the primary election has been held.”

At the June 2014 primary, the turnout in the Democratic and Republican Parties was so low, neither major party passed the 10% test, unless the law is interpreted to mean that every vote cast for every office should be added up for the calculation. A neutral, reasonable reader would read the law to interpret “votes cast” as the number of voters who participated in the party’s primary, because the context of the law is that a party with very bad primary turnout should be deprived of its own party column on the upcoming general election.

The case was filed with a request for emergency consideration. However, after the judge who received the case had had it a day, she transferred it to a Criminal Court Judge, Mark Fleming. Attorneys for the D-R Party investigated and learned that Judge Fleming had been an attorney on the side of the state government in a similar case filed by the Conservative Party in 1999. The D-R group then asked Judge Fleming to recuse himself, which he did on August 19. By now the case has been delayed five days, and it still doesn’t have a case number, or an assigned judge.