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February 2012 Ballot Access News Print Edition

February 28th, 2012

Ballot Access News
February 1, 2012 – Volume 27, Number 9


This issue was printed on white paper.



Table of Contents

  1. TENNESSEE BALLOT ACCESS LAW STRUCK DOWN
  2. NINTH CIRCUIT UPHOLDS WASHINGTON TOP-TWO SYSTEM
  3. VIRGINIA VICTORY
  4. SAN FRANCISCO INSTANT RUNOFF
  5. MINOR PARTIES SUE ALABAMA, OKLAHOMA
  6. VIRGINIA AND CALIFORNIA: OPPOSITE ACTIONS ON WRITE-INS
  7. BALLOT ACCESS BILLS
  8. CALIFORNIA PARTIES CAN SKIP PRIMARY
  9. JANUARY 2012 REGISTRATION TOTALS
  10. 2012 PETITIONING FOR PRESIDENT
  11. ROCKY ANDERSON
  12. OREGON U.S. HOUSE SPECIAL ELECTION
  13. ROSEANNE BARR
  14. BUDDY ROEMER IS FIRST CANDIDATE TO APPLY FOR MATCHING FUNDS
  15. FREEDOM SOCIALIST PARTY
  16. SUBSCRIBING TO BAN WITH PAYPAL

TENNESSEE BALLOT ACCESS LAW STRUCK DOWN

On February 3, U.S. District Court Judge William J. Haynes declared the Tennessee laws for ballot access for new and minor parties unconstitutional. Green Party of Tennessee v Hargett, middle district, 3:11-0692. The decision also puts the plaintiff political parties, the Green Party and the Constitution Party, on the ballot. The decision is 90 pages.

The decision strikes down the April petition deadline for parties to submit their petitions, and also strikes down the number of signatures, 2.5% of the last gubernatorial vote. Also, it says that given that Tennessee has no party registration (so that any voter can choose any party’s primary ballot), the state cannot force minor parties to nominate by primary if they would rather nominate by convention.

The decision also strikes down the law that gives the two largest parties the top lines on the November ballot.

The basis for striking down the number of signatures for a new party is partly the historical record, because no group has successfully completed that petition requirement since 1968, although ironically, it is likely that Americans Elect is about to meet the requirement. Another basis for the decision is that Tennessee only requires 25 signatures for an independent candidate (or 275 for an independent presidential candidate), and it seems silly for the state to require so many more signatures for a minor party than for an independent candidate.

The decision also strikes down a new law that says no party can have the word "Independent" in its name.

This decision will help somewhat with other similar pending ballot access lawsuits in Oklahoma and Alabama, and some that are planned in other states.


NINTH CIRCUIT UPHOLDS WASHINGTON TOP-TWO SYSTEM

On January 19, the 9th circuit upheld Washington’s top-two system, in a case filed in 2005 by the Democratic, Republican, and Libertarian Parties. The decision is only 25 pages, and came down only 51 days after the hearing, an unusually quick decision for an unexpedited case. The ballot access portion of the decision is only three pages long. The judges didn’t work very hard on that part of the decision. Washington State Republican Party v Washington State Grange, 11-35122. The decision is by Judge Raymond Fisher and was also signed by Judges Dorothy Nelson and Milan D. Smith.

Evidence showed that fifty-six minor party members have run for federal or state office in top-two systems (in elections in which there were at least two major party members running), and out of those fifty-six, none of them placed first or second.

This evidence was not contradicted by the state, and it shows that in reality, top-two systems keep minor party members out of the general election campaign season. Furthermore, the evidence before the judges showed that in 715 instances when minor party members ran in blanket primaries for federal and state office (with at least two major party members running), there are only two instances when a minor party candidate placed first or second.

The opinion says, "We recognize the possibility that I-872 makes it more difficult for minor-party candidates to qualify for the general election ballot than laws permitting a minor-party candidate to qualify for a general election ballot by filing a required number of signatures."

"This additional burden, however, is an inherent feature of any top two primary system, and the Supreme Court has expressly approved of top two primary systems. See Cal. Democratic Party v Jones, 530 U.S. 567, 585-86 (2000)."

It is easy to show that the 9th circuit is mistaken. When this same case was in the U.S. Supreme Court in 2008, the Supreme Court said in footnote eleven that the ballot access issue has not yet been settled, and sent the case back to resolve it. Obviously, the U.S. Supreme Court did not believe that the California blanket primary decision issued in 2000 settled that top two systems are constitutional (relative to ballot access), because otherwise footnote eleven makes no sense.

Furthermore, it is obvious that the 2000 California decision invalidating blanket primaries did not say that top two primaries are constitutional. Justice Scalia wrote the 2000 California decision, and in this Washington case, he wrote separately to say that the Washington top-two system so clearly violates the U.S. Constitution that there is no need to send the case back to the lower courts. And even if that weren’t true, what Justice Scalia said in the 2000 California case about a hypothetical system (probably one in which no party labels appear on the ballot) was just dicta.

Furthermore, if the 9th circuit really meant what it said, that exclusionary ballot access is "inherent" in a top-two system, then under U.S. Supreme Court precedents, top-two is unconstitutional.

In Williams v Rhodes, the Supreme Court said the Constitution protects the right of voters to vote in November for minor party candidates.

George Wallace brought that case, because Ohio had made it so difficult for him to get on the November ballot. He had run in Democratic presidential primaries in 1964. He could have done so in 1968; he was a Democrat. He could have run in the Ohio Democratic presidential primary with 1,000 signatures. But he didn’t want to run in the primary; he wanted to be on the general election ballot, and the Court said he could do that. The basis for the decision was the voting rights of people who wished to vote for Wallace in November.

The most useful U.S. Supreme Court precedent to help determine the ballot access issue relative to top-two systems is Munro v Socialist Workers Party, 479 U.S. 189 (1986), in which the Court upheld Washington state’s old ballot access law for minor parties and independent candidates. That past law required minor party or independent candidates to receive 1% of the vote in a blanket primary, as a condition of advancing to the November ballot.

The Socialist Workers Party had won the case in the 9th circuit in 1985. The 9th circuit acknowledged in its Munro opinion that petition requirements to get on the November ballot are constitutional as long as they are at or below 5% of the number of registered voters. But it said a 1% test in a primary is more difficult than a 5% petition.

The U.S. Supreme Court reversed in 1986, and said prior vote tests and petitions are equally difficult, and both should be judged by the same standard. It said, "We are unpersuaded that the differences between the two mechanisms are of constitutional dimension."

This was the holding in the case, and yet the recent 9th circuit opinion didn’t even mention it. Obviously, because petition requirements higher than 5% are unconstitutional, so are prior vote tests. Yet a top-two system requires a candidate to poll, on the average, 30% in order to qualify for the November ballot.

The recent 9th circuit opinion says, "I-872 gives minor-party candidates the same opportunity as major-party candidates to advance to the general election." It also says, "Because I-872 gives major- and minor-party candidates equal access to the primary and general election ballots, it does not give the ‘established parties a decided advantage over any new parties struggling for existence.’"

That sentence is rebutted by the U.S. Supreme Court opinion in Jenness v Fortson, 403 U.S. 431 (1971), which says, "The fact is that there are obvious differences in kind between the needs and potentials of a political party with historically established broad support, on the one hand, and a new or small political organization on the other…Sometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike."

The 9th circuit did not mention that part of Jenness v Fortson. One is reminded of the famous quote "The law in its majesty forbids both the rich and the poor from sleeping under bridges." The evidence showed that minor parties are always kept off the November ballot (if they are at least two major party members running), and the U.S. Constitution forbids the states from having an election law with such a result.

Some defenders of top-two think that the November election is analogous to a run-off, and it is common that only two candidates are in a run-off. But federal law since 1872 has told the states that they must hold congressional elections in November, and if a state wants a run-off, it must be afterwards.

Louisiana understands this and holds its congressional run-offs in December. But no state is free to hold its congressional election in June or August. The California primary in June, and the Washington state primary in August, is not "the election." Instead, these events have no function except as ballot access barriers to the election itself.

Freedom of Association

The 9th circuit spent more pages on the part of its decision concerning freedom of association, than on the part about ballot access. The political parties had presented experimental evidence that approximately half of all voters, when given a copy of the Washington primary and general election ballots, mistakenly believe that the party labels on those ballots mean the party either nominated the candidate, or that the party approves of the candidate, or that the candidate is a party member.

Political Science Professor Mathew Manweller did the experiment. The 9th circuit wrote, "Manweller’s results suggest voter confusion, but he did not give the subjects in his experiments the ballot inserts and voter pamphlets the state provides to the actual electorate. The sample ballots Manweller used also did not conform to the ballots used in actual elections; whereas state law requires that the disclaimer regarding the lack of party association appear ‘immediately above the first partisan congressional, state or county office.’"

Professor Manweller says the court is wrong. He writes, "We went down to the Auditors’ Office and got an exact copy of the ballot used in 2008. We reprinted it to the letter, including words that were bolded, underlined, spacing, capitalization. Secondly, we did include the disclaimer language, word for word in the exact place that it appeared on the state ballot. The Court is correct in that we placed the disclaimer on the bottom left instead of the top left, but that is because that is what the Auditor did."

Also, the 9th circuit court ignored the fact that there is no Voters Pamphlet in primaries.

The Washington Libertarian Party long ago trademarked its name, and that was an issue in the case, but the decision belittles that argument.

This Libertarian Party will ask for U.S. Supreme Court. It is not known if the major parties will do likewise.


VIRGINIA VICTORY

On January 13, U.S. District Court Judge John A. Gibney ruled in Perry v Judd, 3:11-cv-856, that Virginia’s ban on out-of-state petition circulators "is highly unlikely to withstand the First Amendment challenge", and that "The Court agrees with the rationale in Nader v Brewer." Nader v Brewer is a 9th circuit opinion that struck down Arizona’s ban on out-of-state circulators for presidential candidates. The case had been filed by Republican presidential candidates who had failed to get on the primary ballot.

Judge Gibney said he would not put any candidates on the ballot, because the case had been filed too late. The candidates appealed, but on January 17, the Fourth Circuit agreed that the case had been filed too late. The Fourth Circuit did not express any opinion about the the ban on out-of-state circulators, but will consider that question later this year.

On January 27, a Virginia House Committee passed HB 1133, which says that any adult Virginian may circulate any petition anywhere in the state. This is a liberalization, because the existing law says no one can circulate outside of his or her home U.S. House district, when working on district petitions. However, there is no bill to let out-of-state petitioners work in Virginia.


SAN FRANCISCO INSTANT RUNOFF

San Francisco is the most populous jurisdiction in the U.S. that uses Instant Runoff Voting. A bill to ask voters if they wish to repeal the system is under consideration by the Board of Supervisors. Another bill is pending that would retain IRV and expand it so that voters would have more than just three rankings for each office. If the Supervisors pass either bill, whatever passes will probably be on the November 2012 ballot.

The Supervisors will discuss the bills on September 7.


MINOR PARTIES SUE ALABAMA, OKLAHOMA

On January 10, the Constitution, Green and Libertarian Parties of Alabama filed a lawsuit in U.S. District Court against the March 2012 petition deadline. Stein v Chapman, m.d., 2:12-cv-42. It was assigned to U.S. District Court Judge William K. Watkins, a Bush Jr. appointee.

On January 31, the Green and Libertarian Parties of Oklahoma filed a lawsuit in U.S. District Court against the March 2012 deadline for party petitions. Libertarian Party of Oklahoma v Zeriax, cv12-119.

In both states, the deadlines were made worse by bills that passed in 2011. The old Oklahoma deadline was in May, and the old Alabama deadline was in June. Sixteen precedents hold that petition deadlines for new parties earlier than May are uncontitutional, and there are no reported decisions to the contrary. The case against early petition deadlines for new parties is especially strong in connection with presidential elections.


VIRGINIA AND CALIFORNIA: OPPOSITE ACTIONS ON WRITE-INS

On January 27, the Virginia House Privileges and Elections Committee passed HB 1132, to allow write-ins in primaries, if the party wants write-ins for its primaries.

On January 30, the California legislature passed AB 1413, to remove write-in space from the November ballot for Congress and state office.


BALLOT ACCESS BILLS

Alabama: SB 15 reduces petitions for a new party from 3% of the last gubernatorial vote to exactly 5,000 signatures. Independent candidates would need a petition of 1.5% of the last gubernatorial vote. SB 55 would eliminate mandatory petitions for minor party and independent candidates who pay a filing fee of 2% of the office annual salary.

Missouri: four Missouri representatives have introduced HB 1236, to delete the requirement that a petition to qualify a party must include the names of presidential elector candidates if the party believes it will enter the presidential race.

Nebraska: on February 1, a Senate Committee heard LB 757, the bill to make it easier for a party to remain ballot-qualified. The bill says when a party meets the 5% vote test, it then remains on the ballot for the next two elections, not just the next election.

Utah: HB 233 has been introduced, to make the same change that the Nebraska bill mentioned above does. On February 2 the bill passed the House Government Operations Committee.

West Virginia: Delegate Mike Manypenny has introduced HB 3248, which changes the definition of "party" from a group that got 1% for Governor, to 1% for any statewide office. Senator Clark Barnes has introduced SB 63, which changes the definition of "party" the way HB 3248 does, but in addition says a party is also a group with voter registration membership of at least one-twentieth of 1%.


CALIFORNIA PARTIES CAN SKIP PRIMARY

On January 23, the California Secretary of State ruled that if Americans Elect doesn’t wish to participate in the June 2012 primary, that the state will honor its request. Americans Elect is a ballot-qualified party but it doesn’t want to use its presidential primaries in California or any other state.

California parties already have the ability to decline elections for party officers, and California no longer has party primaries for any office besides President. Therefore, California will not print up any June 2012 primary ballots for voters who are registered "Americans Elect." Those voters will use the ballot printed up for independent voters.


JANUARY 2012 REGISTRATION TOTALS

The chart below shows the number of registered voters in each party. Significant parties in the "Other" column are: Alaska: Veterans 1,437, Alaskan Independence 14,948; California: Peace & Freedom 59,012, Justice 183; Connecticut: Working Families 162, Independent Party 9,183, Independence Party 803; Ct. for Lieberman 82; Delaware: Working Families 486; Socialist Workers 215; Independent Party 2,401; Florida: Independent Party 257,258, Independence Party 58,273, Socialist Workers 293, Socialist 555, Tea Party 30; Party for Socialism & Liberation 30; Kentucky: Socialist Workers 59; Louisiana: Conservative 423; Massachusetts: Socialist 162, Working Families 26; New Jersey: Conservative 368; New Mexico: Independent Party 22,772, Socialist 13, Socialist Workers 14; New York: Independence 398,830, Conservative 140,137, Working Families 38,290, Rent is 2 Damn High 37; Oregon: Independent Party 68,516, Progressive 1,904, Working Families 3,335; Rhode Island: Moderate 584.

The California figure for the Justice Party is official, but not accurate, because Los Angeles County reported "zero" members, which is incorrect.

~

Dem.

Rep.

Indp, misc

AIP/Const

Lib’t.

Green

Reform

Am. Elect

other

Alaska

72,792

130,742

264,499

33

8,051

2,133

?

?

16,385

Arizona

957,786

1,118,938

1,033,584

?

22,912

4,996

?

111

- -

Calif.

7,429,684

5,170,592

3,603,612

428,681

93,300

111,319

20,722

3,165

61,074

Colorado

673,701

782,805

627,210

3,161

9,351

4,024

?

?

- -

Conn.

734,554

412,421

829,224

202

1,273

1,721

87

?

9,345

Delaware

288,168

176,247

138,282

454

819

530

106

0

3,243

Dt. Col.

340,607

29,794

79,930

?

?

4,121

?

?

- -

Florida

4,553,563

4,063,853

2,270,719

976

17,222

5,635

2,213

4

326,837

Iowa

644,223

614,913

719,405

- -

1,506

709

- -

- -

- -

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