Ballot Access News -- March 1, 2008 (original) (raw)

26.5% OF VOTERS ARE NOT REGISTERED DEMS OR REPS

Four years ago, B.A.N. noted that for the first time in 75 years, more than one-fourth of all voters are registered outside the two major parties. At that time, in the 30 states in which people register by party, 23.15% of the voters were independents, and 1.87% were minor party members.

The trend continues. Although minor parties have declined to 1.63%, independents have grown to 24.82%. See the chart on page four for a state-by-state breakdown. All data in that chart is from early 2008, or late 2007. The sole exception is Maine, which has not done a tally since November 2006.

What is most surprising is that both Democratic registration, and Republican registration, is a lower percentage than it was four years ago, despite the fact that the interest in this year�s presidential primaries is so high. States in which one or both major party presidential primaries are closed to independents are Arizona, California, Connecticut, Delaware, Florida, Kentucky, Louisiana, Maryland, Nebraska, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, South Dakota, and West Virginia. One would have expected the independent share to decline, as people switched to major parties to vote in their presidential primaries.

Here are the percentages for each major party for the past 16 years:

PENNSYLVANIA REGISTRATIONS GAIN

Molly O�Leary, Chief of the Pennsylvania Voter Registration Division, has ruled that the state will tally voters who are registered in the Constitution, Green and Libertarian Parties. This is the first time Pennsylvania has ever performed this service for a group that does not meet the definition of "political party".

Those three parties lost their "party" status in November 2006, when they each failed to poll a number of votes equal to 2% of the highest vote-getter�s vote total. Those three parties were kept off the 2006 ballot for statewide office, so they obviously couldn�t meet the vote test.

The Pennsylvania policy is also followed by Alaska, California, Colorado, Delaware, Iowa, Kentucky, Louisiana, Massachusetts, New Jersey, New Mexico, New York, Oklahoma (in very limited circumstances), South Dakota, and Utah. All political parties benefit from having access to such lists.

NORTH CAROLINA COURT HEARING

On January 30, a hearing was held in North Carolina Superior Court in the ballot access lawsuit filed in 2005 by the Libertarian Party. The Green Party joined the case last year. Judge A. Leon Stanback said that since some facts are in dispute, there must be a trial. He also said that he thinks that 5,000 to 10,000 signatures would be enough to keep the ballot from being crowded. Current law requires 69,734 signatures. North Carolina required 10,000 signatures between 1929 and 1981, and never had more than four minor parties. The case is Lib�t Party v State Bd. of Elections, 05-cvs-13073.

MINNESOTA COURT SAYS CONVICTS MAY RUN FOR CONGRESS

On January 18, Minnesota district court judge Gerald Wolf ruled that convicts may run for Congress. Therefore, Minnesota officials in the future must allow them to obtain declaration of candidacy forms, and must print their names on primary ballots, if they pay the filing fee, and if the convict is at least 25 years old, a U.S. citizen, and a Minnesota resident. The case is Richards v Windschitl, 66-cv-06-1517, Rice County.

The case was won by Leonard J. Richards, who is not an attorney, but who represented himself. He had first tried to run for U.S. House in the September, 2006 Democratic primary, but prison officials told him "Offenders are not allowed to run for public office and not allowed to vote." Richards sued in state court, but Defendants removed the case to federal court. On March 8, 2007, the federal court sent it back to state court. The state court then ruled in Richards� favor, and also ruled that elections officials should tally his 2006 write-ins.

The basis for the decision is U.S. Term Limits v Thornton, the 1995 decision that said that states may not add to the list of qualifications to run for Congress.

NATIONAL POPULAR VOTE PLAN BILLS

Bills to establish the National Popular Vote Plan have advanced this year. The New Jersey bill was signed on January 12. The Illinois bill was sent to the Governor on February 7. The Washington Senate passed the bill on February 18. On the other hand, the West Virginia and New Hampshire bills were killed in Committee, both on January 29.

WASHINGTON LIKELY TO USE PETITIONS FOR BALLOT ACCESS

On February 14, the Washington House passed HB 1534 unanimously. It had a hearing in the Senate policy committee on February 22. No one opposed it; it will probably pass.

The most important three changes are: (1) it switches ballot access for minor party and independent candidates to a petition system, and abandons the old system in which minor parties and independent candidates hold meetings with a minimum attendance; (2) it lowers the requirement for a minor party or independent candidate for U.S. House, from 1,000, to 250; (3) it reduces the number of votes needed in a primary for a ballot-qualified party to nominate candidates.

Change #1 above is historic. When the first ballot access laws were written, states came up with two types of test to measure whether a party should be on the ballot: (1) a petition requirement; or (2) a requirement that a certain number of voters attend that party�s convention.

Most states chose the petition method, but seven states tried the minimum attendance method. However, the states using an attendance test have mostly abandoned that system. It will be entirely dead, for mandatory minor party ballot access, if Washington abandons it.

Here is the experience of states that used a mandatory attendance test for minor political party ballot access:

Idaho: required 200 attendees, 1931-1966. Parties that met this test were the Communist, Progressive, Prohibition, Socialist, and Union Parties. When the legislature repealed this method in 1966, it did not pass any new procedure to replace the old method! George Wallace sued Idaho in 1968 and won, and the legislature then passed a petition procedure.

Louisiana: required 25 attendees, 1898-1912, but then switched to requiring 1,000 signatures.

Massachusetts: required 25 attendees, 1890-1895, but switched to requiring 1,000 signatures.

Nebraska: required 200 attendees, 1897-1907. In 1907 the state increased that to 500 attendees (this test was only required for new parties; parties that had polled 1% at the last election did not need to worry about minimum attendance).

In 1928 the Communist Party claimed that it had met the requirement, but the state disputed it and kept the party off the ballot. In 1929 the legislature increased the minimum attendance to 750. That law was so tough, in 1948 Nebraska was one of only three states in which Henry Wallace couldn�t get on the ballot; only 293 voters attended his convention. In all the years that Nebraska required 750 attendees, only the Union Party of 1936 and the American Independent Party of 1968 succeeded. In 1969 the legislature junked the attendance test and replaced it with a 1% petition.

Washington: required 25 attendees in 1937 (before 1937, any group that held a convention could be on the ballot with no petition, regardless of how few people attended). In 1952, the Christian Nationalist Party, a very tiny anti-Semitic party, got on the ballot and listed General Douglas MacArthur as its presidential candidate. MacArthur was not a declared candidate, but he didn�t withdraw his name. He polled 7,290 votes in Washington. This so irritated the legislature that in 1955 it increased the minimum attendance to 100.

In 1976, ten minor parties qualfied, including a self-described "frivolous" party, the Owl ("Out with Logic") Party. In 1977, the legislature increased the attendance to one-hundredth of 1% of the last vote, which was then 156 people. However, it also said that there could be multiple conventions around the state, and their attendance could be added together. Also it said that if a party just wanted to be on in a single district or a single county, using the percentage formula for that district, it could do so.

In 1989 it eliminated the .01% formula, and set 200 as the statewide requirement, and 25 as the requirement for district and county office conventions.

In March 2004, the state increased the attendance to 1,000 for statewide office, effective immediately. Minor parties adapted by holding outdoor "conventions", in which any voter walking past, was asked to sign as an "attendee." The Secretary of State accepted such signatures. At this point, it was clear that the original idea of attendance was a sham, and the Secretary of State decided to end the charade, and proposed HB 1534.

The 2004 change also required 1,000 attendees for conventions to nominate U.S. House candidates. That change was devastating. In 2004, no independents for U.S. House qualified, and only one nominee of an unqualified party qualified. In 2006 no minor party candidates for U.S. House qualified, and only a single independent candidate did so.

HB 1534 does improve ballot access. Candidates may start petitioning as early as they wish. As noted, independent candidates for U.S. House, and the nominees of unqualified parties, will only need 250 signatures. The bill does not change the deadlines, which are still in May (except that for president, the deadline is in August).

At the Senate hearing on February 22, activists asked Senators to amend the bill so that it takes effect immediately, instead of in 2009. Also witnesses asked Senators to amend the bill so that the deadlines are all in August. Senators said they would not do that, but they would move the non-presidential deadline from May, to June.

It would have been desirable if HB 1534 were written to permit an unqualified party to circulate a single petition, to attain the status of a qualified party. All the other states in the western half of the United States have such a procedure. But, that idea is new in Washington, and activists didn�t work very hard for it.

PA. BALLOT ACCESS LAW IN JEOPARDY

Pennsylvania is the only state that still has a county distribution requirement for statewide candidate petitions. Candidates running in primaries for State Treasurer need 1,000 signatures, and they also must have at least 100 signatures from each of five counties.

Pennsylvania elects a Treasurer this year. Four Democrats submitted petitions for that office. Two of them may not have at least 100 valid signatures from at least five counties. They are State Representative Jennifer Mann, and financial adviser Dennis Morrison-Wesley. The other two Democrats in that race, John F. Cordisco and Rob McCord, arranged a challenge of the Mann petition and the Morrison-Wesley petition. On February 29, a state court hears the challenges.

Mann and Morrison-Wesley are free to file lawsuits in federal court, alleging that the county distribution requirement is unconstitutional, and if they do that, they will almost certainly win. The U.S. Supreme Court ruled such requirements unconstitutional in 1969 in Moore v Ogilvie. That is why Pennsylvania is the only state left with county distribution requirements for candidates.

On December 12, 2000, the U.S. Supreme Court released its famous decision Bush v Gore. That decision reiterated the holding from Moore v Ogilvie, thus dispelling any doubts that the current Court still believes in Moore v Ogilvie. Bush v Gore was so strong on "one man, one vote" that ever since it came out, courts have even invalidated county distribution requirements for initiative petitions, in Nevada, Utah and Idaho.

"One man, one vote" invalidates county distribution requirements, because counties vary widely in population. If every Democrat in Philadelphia supported either Mann or Morrison-Wesley, but neither had any support elsewhere in the state, neither could get on the ballot.

Yet someone with support in five tiny-population counties, yet no support elsewhere in Pennsylvania, could get on the ballot.

In 1979, U.S. District Court Judge Edward Cahn invalidated the county distribution requirement for presidential primary candidates. The legislature then amended the law to make it apply only to state office. In 1994, Judge Cahn almost struck down the requirement for state office, in Trinsey v Mitchell, 851 F.Supp. 167. He did not do so because, as he noted, Jack Trinsey didn�t submit the needed number of signatures statewide, so Trinsey lacked standing to challenge the county distribution requirement.

Pennsylvania Representative Kerry Benninghoff will soon introduce a bill to eliminate all mandatory petitions for both primary and general elections. He asked legislative counsel to draft such a bill. The response was a draft to only eliminate petitions for primaries. Benninghoff asked the counsel to re-do the draft, so as to eliminate mandatory petitions for the general election, as well. That work is in progress.

On February 7, U.S. District Court Judge J. Michael Seabright upheld Hawaii ballot access law for independent presidential candidates. Nader v Cronin, 1:04-cv-611. Ralph Nader and Michael Peroutka had sued in 2004, alleging that since Hawaii only requires one-tenth of 1% of the registered voters to put an entire new party on the ballot, there can�t possibly be any state interest in requiring independent presidential candidates to collect 1% of the last presidential vote.

When a new party gets on the ballot in Hawaii, has its own primary and is free to nominate a candidate for every partisan office in the state. Thus, it seems illogical that the procedure which could possibly crowd the ballot with many names requires so few signatures, relative to another procedure that adds only one name to the ballot.

In 2004, a new party needed 677 signatures; an independent presidential candidate needed 3,711. One might think that both these numbers are relatively small, and wonder why either Nader or Peroutka had trouble getting 3,711 valid signatures. The answer is that Hawaii�s validation process is very arbitrary, and petitions in Hawaii usually are invalid unless they have at least double the number of signatures required. Hawaii elections officials want either the last 4 digits of the signer�s Social Security number, or the signer�s full birthday, on the petition. Even when these are included, the signature is likely to be stricken if the name doesn�t match exactly with the voter registration record.

Nader and Peroutka also challenged petition-checking methods. The judge set a March 4 trial for that.

Judge Seabright did not mention precedents from Alabama, Florida, and North Carolina, that say states may not require more signatures for an independent than for a new party. He did cite the 2004 precedent Nader v Connor, which upheld that type of disparity in Texas. He also cited Stevenson v State Bd. of Elections, a 1986 case from Illinois that upheld an earlier petition deadline for independents than for new parties. However, the Stevenson decision was overruled by a 2006 decision from the same court (the 7th circuit), Lee v Keith.

Finally, Judge Seabright cited Erum v Cayetano, a 1989 decision from the 9th circuit that upheld Hawaii�s law saying independent candidates (for office other than president) need to get as many votes in the open primary as their weakest opponent got in that same primary, or 10% of the total primary vote, whichever is less. However, the law upheld in that case does not set a higher threshold of support for independent candidates; it sets a lower one.

After the part of the case involving petition-checking procedures is over, Nader and Peroutka will appeal the other issue in the case to the 9th circuit.

MORE MAJOR PARTY PETITION PROBLEMS

The January 1 B.A.N. lead story focused on major party presidential candidates who had trouble getting on presidential primary ballots this year. After that issue was published, more incidents occurred. Both Joe Biden and Bill Richardson tried and failed to get 1,000 valid signatures to be on the Rhode Island presidential primary ballot.

Also, even Hillary Clinton failed to get a full slate of delegates on the Pennsylvania ballot. Pennsylvania law requires 250 signatures for delegates, in each U.S. House district. Ten Clinton delegates did not obtain enough signatures. However, the consequences are small. Clinton herself got on the ballot with a 2,000 signature petition. If she carries any particular district, she can designate delegates even if they weren�t elected.

N.M. EASES PRIMARY BALLOT ACCESS

On February 13, the New Mexico legislature passed SB 1, which makes it possible for primary candidates to get on a primary ballot, even if they have little or no support at a party nominating convention. New Mexico had had such procedures, until it had repealed them in 2007. The 2008 session put them back after a public outcry.

EARLY 2008 REGISTRATION TOTALS

Parties in the "Other(1)" column are: Alaska, Alaskan Independence; Calif., Peace & Freedom; Ct., Working Families; Del., Working Families; Fla., Socialist; Ky., Socialist Workers; Mass., Working Families; N.J., Natural Law; N.Y., Conservative; Ore., Working Families; Utah, Personal Choice. Parties in the "Other(2)" column are: Alaska, Republican Moderate 4,649 and Veterans 2,255; Del., Socialist Workers; Fla., Socialist Workers 331 and Prohibition 46; N.Y., Working Families 36,321 and Socialist Workers 5; Ore., Socialist; Utah, Socialist Workers.

2008 PETITIONING FOR PRESIDENT

#partisan label is OK (other than "independent"). *entry changed since Feb. 1, 2008 B.A.N.

On February 24, Ralph Nader was the only guest on "Meet the Press". Tim Russert interviewed him for 20 minutes. Nader said that he is running for president this year. He did not say explicitly how he would run, but he seemed to imply that he would be an independent candidate. However, later on the day, his webpage posted this message from Sally Soriano, his campaign manager:

"Ralph told the media today after �Meet the Press� that he will decide within the coming days how he is going to run for President in terms of ballot access. On �Meet the Press� he mentioned the Green Party positively multiple times thus helping put the Green Party out to five million plus viewers. Ralph also said that he will announce his Vice-Presidential selection sometime in the next week. If people with the Green philosophy want him to seek their nomination, they could show their support by going to and by donating and signing up on the email list. No matter what he decides he will be communicating the Green Party agenda over the coming months."

RON PAUL WON�T RUN FOR PRESIDENT OUTSIDE THE MAJOR PARTIES

On February 8, Ron Paul issued a statement that said, "With Romney gone, the chances of a brokered convention are nearly zero. But that does not affect my determination to fight on, in every caucus and primary remaining, and at the convention for our ideas, with just as many delegates as I can get. But with so many primaries and caucuses now over, we do not now need so big a national campaign staff, and so I am making it leaner and tighter. Of course, I am committed to fighting for our ideas within the Republican Party, so there will be no 3rd party run. I do not denigrate third parties � just the opposite, and I have long worked to remove the ballot access restrictions on them. But I am a Republican, and I will remain a Republican."

GREEN PRESIDENTIAL PRIMARIES

Arkansas: unpledged 433; Cynthia McKinney 157; Jared Ball 82; Kent Mesplay 61; Kat Swift 46.

California: Ralph Nader 19,771; Cynthia McKinney 8,692; Elaine Brown 1,469; Kat Swift 999; Kent Mesplay 668; Jesse Johnson 570; Jared Ball 506.

District of Columbia: Cynthia McKinney 214; write-ins 145; no candidate 56; Howie Hawkins 34; Kat Swift 21; Jared Ball 19; Kent Mesplay 17; Jesse Johnson 15.

Illinois: Cynthia McKinney 1,446; Howie Hawkins 438; Kent Mesplay 369; Jared Ball 302.

Massachusetts: the state still hasn�t released any figures, and the press didn�t do its own survey of the various towns. Boston reported a slight edge for Ralph Nader over Cynthia McKinney.

LIBERTARIAN PRESIDENTIAL PRIMARIES

California: Christine Smith 3,990; Steve Kubby 2,730; Wayne Allyn Root 2,226; Bob Jackson 1,398; Barry Hess 844; George Phillies 794; Michael Jingozian 739; Robert Milnes 672; Daniel Imperato 660; John Finan 660; Dave Hollist 645; Alden Link 529.

Missouri: unpledged 967; Wayne Allyn Root 369; Steve Kubby 196; George Phillies 163; Dave Hollist 142; Daniel Imperato 141; Michael Jingozian 79.

PEACE & FREEDOM PRIMARY (Calif.)

Ralph Nader 2,445; Cynthia McKinney 1,304; Gloria La Riva 1,285; John Crockford 327; Stewart Alexander 324; Brian Moore 328; Stanley Hetz 98.

CONSTITUTION PRES. PRIMARY

California: Don Grundmann 15,570; Diane Beall Templin 14,333; Mad Max Riekse 13,170.