by Richard Winger

Ballot Access News

U.S. DISTRICT COURTS UPHOLD RESTRICTIVE BALLOT ACCESS LAWS IN GEORGIA AND OKLAHOMA

On April 30, U.S. District Court Judge David Russell upheld Oklahoma's petition requirement for independent presidential candidates, which is so difficult it hasn't been used since 1992. And on May 26, U.S. District Court Judge Robert L. Vining upheld Georgia's petition requirement for independent candidates for U.S. House, which is so difficult, it has not been used since 1964. Both decisions ignore the U.S. Supreme Court decisions that say the constitutionality of ballot access laws should be judged by often they are used. Both the Oklahoma and Georgia cases will be appealed. Fortunately, in each case, the record has the needed historical facts.

In 1968, the U.S. Supreme Court struck down Ohio's procedures for new parties and independent candidates, noting that they had not been used (for president) in the 17 years since they had existed.

In 1971, the Supreme Court upheld Georgia's laws for independent candidates, and the candidates of unqualified parties, noting that they had been used statewide in 1966 and 1968 (the 1966 instance was a Republican Party petition; the law required Republicans either to petition, or to administer their own primary).

Therefore, from the beginning of federal ballot access jurisprudence, the key factor in judging whether a ballot access law is too hard is whether it gets used or not.

In 1974 the Court made it explicit. In Storer v Brown, 415 U.S. 724, the Court said, "There will arise the inevitable question for judgment: could a reasonably diligent independent candidate be expected to satisfy the signature requirement, or will it be only rarely that the unaffiliated candidate will succeed in getting on the ballot?

"Past experience will be a helpful, if not always an unerring, guide: it will be one thing if independent candidates have qualified with some regularity and quite a different matter if they have not." (page 742). Because the record did not say how often independent candidates had qualified in California, the Court sent the case back to lower courts and said to re-hear it. However, no court ever re-heard it, since California's legislature then voluntarily eased independent candidate ballot access, and the case was dismissed by the plaintiffs.

The Supreme Court applied the usage test again in 1977, in Mandel v Bradley, 432 U.S. 173. The record in that case also lacked data on how often independent candidates had qualified in Maryland. Once again, the Court sent the case back to lower courts and said to re-do it. The lower court then struck down Maryland's March petition deadline.

In 2008, Justice Scalia mentioned the usage test in his concurrence in Crawford v Marion County Election Board. He said, "In Storer v Brown we observed that the severity of the burden of a regulation should be measured according to its �nature, extent, and likely impact. We therefore instructed the District Court to decide on remand whether a reasonably diligent independent candidate could be expected to satisfy the signature requirements, or will it be only rarely that the unaffiliated candidate will succeed in getting on the ballot?"

Also, in 1983, the Supreme Court had said in Anderson v Celebrezze, 460 U.S. 780, that when a lower court is judging whether a ballot access law is constitutional or not, it "must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by the rule.

"In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is constitutional." (page 789).

Neither the recent Oklahoma decision, not the recent Georgia opinion, mentioned any of these opinions. Nor did either decision mention any of the evidence. The Oklahoma decision is eight pages and the Georgia decision is three pages. They merely said that the laws at issue had been upheld in the past.

The Oklahoma case is Barr v Ziriax, civ-08-730-R. Judge Russell is a Reagan appointee. The Georgia case is Coffield v Handel, 1:08-cv-2755. Judge Vining is a Carter appointee.

The evidence in the Oklahoma case includes the fact that Oklahoma is the only state in which voters have not been permitted to vote for president at either of the last two general elections, unless they vote for the Republican or Democratic nominee.

The evidence in the Georgia case includes the fact that not only has no independent completed the 5% petition requirement since 1964, but also that back in 1964 petitioning was much easier for U.S. House because no county except Fulton County was split into more than one district. U.S. House petitions always have low validity rate when the boundaries of the districts are complicated and not keyed to county boundaries, because people know what county they live in but generally they don't know which U.S. House district they live in. Also, back in 1964, the deadline was October and petitions were not checked.

SOTOMAYOR GOOD ON BALLOT ACCESS

Judge Sonia Sotomayor, President Obama's choice for U.S. Supreme Court, has a good record on most of the ballot access cases that have come before her.

She was the first federal judge to give any relief whatsoever to any write-in candidate, after the U.S. Supreme Court had ruled in 1992 that states are not required to permit write-ins if their ballot access laws are easy. Lower courts then seemed to interpret this as a signal that no lawsuit concerning write-ins could ever win. For example, in 1993, U.S. District Court Judge David Russell had upheld Oklahoma's ban on write-ins, even though Oklahoma has very tough ballot access laws for president.

But in 1995, Judge Sotomayor ruled partially in favor of Irving Gelb, a write-in candidate in the Democratic primary for Bronx Borough President. He had filed a federal lawsuit complaining that New York City was not printing write-in space on primary ballots for certain offices, and also that they weren't permitting write-ins on absentee ballots. Most federal judges would have dismissed his case, but Sotomayor kept it alive (Gelb v Board of Elections, 888 F Supp. 509). Gelb was a pro se taxi driver. Eventually he lost his first case because the Board of Elections claimed that it would do better next time. However, the Board did not improve its procedures, so in 1997 Gelb filed a second case (which went to another judge) and won.

In 2006, Sotomayor voted to strike down New York's ballot access laws for candidates for Delegate to party judicial nominating conventions, in Lopez Torres v Board of Elections, although she didn't write that decision. In 2008 the U.S. Supreme Court reversed that decision.

Unfortunately, in 2006, she voted to deny injunctive relief in a case challenging the New York definition of "political party". Person v Board of Elections, 467 F.3d 141. No one knows who wrote that decision, since it is only signed "per curiam."

Carl Person, who was a member of the Green Party, had filed a lawsuit saying that since the Green Party of New York had polled over 50,000 votes for some statewide offices in 2002 (but not the required 50,000 votes for Governor), the party should be on the ballot automatically for 2006.

Person was not a Green Party candidate, nor an officer of the party, and the Court should have said he lacked standing. Instead it said that the definition of "political party" (requiring 50,000 votes for Governor) is probably constitutional because otherwise the ballot would be too crowded. No evidence had been submitted in that case about the increase in the number of parties if the law had covered any statewide race instead of just Governor.

Assuming Sotomayor is confirmed by the Senate, she will probably be a good justice for minor parties. She is socially acquainted with some Independence Party activists in New York city. When the White House annouced her selection, the press release said, "Her favorite project is the Development School for Youth Program, which sponsors workshops for inner city high school students. Every semester, approximately 70 students attend 16 weekly workshops that are designed to teach them how to function in a work setting."

The Development School for Youth Program was created out of the Allstars Talent Show Network in New York city, by Lenora Fulani and her associates. One reason the U.S. Supreme Court has been so unhelpful to minor parties and independent candidates is that (probably) none of the justices is socially acquainted with any minor party members or activists. Sotomayor appears to be someone who does know people who believe in election activity outside the two major parties. And even without such acquaintanceship, any judge from New York state is likely to be far more accepting of minor parties than judges from intolerant states such as Georgia or Illinois, the home states of other prospects who were on Obama's short list.

OKLAHOMA BALLOT ACCESS BILL DOESN'T PASS THIS YEAR

The Oklahoma bill to ease ballot access for new or previously unqualified parties passed both Houses of the legislature, but the two houses passed different versions. Then the legislative conference committee failed to agree on one version of the bill, and the legislature adjourned. However, Oklahoma has two-year legislative sessions, so the bill will receive attention in January 2010. The bill is HB 1072. The Senate version of the bill would have lowered the number of signatures from 5% of the last vote cast, to 3% of the last gubernatorial vote. The House version was 5% of the last gubernatorial vote.

Oklahoma did make it easier for initiatives to get on the ballot this year. On May 26, the Governor signed SB 800, to provide that any challenge to the substance of an initiative proposal must be settled before the proponents collect the signatures. Also passing this year was SJR 13, which lowers the number of signatures for a statutory initiative from 8% of the last vote cast, to 8% of the last gubernatorial vote. Since the number of signatures is in the State Constitution, SJR 13 will not take effect unless the voters vote for it in November 2010.

A third bill also passed the legislature to ease ballot access for initiatives. It is HB 2246, cutting the number of dats for an initiative petition from 90 days to one year. Governor Brad Henry has until June 7 to sign or veto that bill.

WEST VIRGINIA BALLOT ACCESS BILL SIGNED

On May 8, West Virginia Governor Joe Manchin signed HB 2981, the bill that improves ballot access. This bill is certainly the most significant improvement in ballot access made by any state legislature this year. It moves the non-presidential petition deadline from May to August, and cuts the number of signatures from 2% of the last vote cast, to 1%.

HELPFUL BALLOT ACCESS BILLS ADVANCE IN FIVE STATES

Arizona: the Secretary of State plans to amend SB 1091 (his omnibus election law bill) to move the independent presidential petition deadline from June to early September. The bill will also be amended to say that out-of-state circulators may work for an independent presidential candidate. However, the bill will not change the existing ban on out-of-state circulators for other types of petitions. The motivation for these changes is because Arizona lost the lawsuit Nader v Brewer last year.

Louisiana: HB 420, giving independent presidential candidates a somewhat later deadline for getting on the ballot, has passed the House Committee on House & Governmental Affairs and is set for a vote in the House on May 29. Existing law reaquires the paperwork by the first Tuesday in September; the bill changes that to the first Friday after the first Tuesday in September.

Maine: LD 1169, making it easier for a voter to cast a write-in vote, passed the legislature on May 26. It deletes the requirement that the voter include the candidate's town. LD 1041, which eases the test for a party to remain ballot-qualified, has passed the Legal & Veterans Affairs Committee.

Oregon: SB 326, which makes it possible for primary voters to sign an independent candidate's petition, passed the Senate on May 14.

Texas: HB 1193, which gives qualified parties more time to certify the names of their presidential and vice-presidential nominees, passed the legislature on May 26.

NEW MEXICO BALLOT ACCESS LAWSUIT

On May 7, the Libertarian Party and the Green Party filed a federal lawsuit over many New Mexico ballot access laws and practices. Woodruff v Herrera, cv-09-449. Alan Woodruff, the lead plaintiff, is a Libertarian nominee for U.S. House in 2010. One of the other co-plaintiffs, Daniel Fenton, wants to run for U.S. House in 2010, but he is not registered to vote, so New Mexico law does not permit him to qualify. However, New Mexico is in the 10th circuit, and in 2001 the 10th circuit ruled that states cannot require candidates for Congress to be registered voters.

The lawsuit also attacks the refusal of the New Mexico Secretary of State to supply petition forms for new parties to qualify, or petition forms for their nominees to qualify, until October of odd-numbered years. New Mexico is the only state that requires one petition to qualify the party, and then additional petitions from each of that party's nominees. No law controls when either of these types of petition may begin to circulate, but the Secretary of State refuses to let groups create their own petitions, and she won't let them have the state petition forms now.

There are many other issues in the case also, including the Secretary of State's refusal to put a "straight-ticket" device on the ballot for any parties other than the two major parties, a practice started in 2006. The lawsuit has been assigned to Judge William Johnson, a Bush Jr. appointee.

RESTRICTIVE BILLS DEFEATED

Louisiana: HB 776 was defeated on May 27. It would have eliminated the primary for small qualified parties. Oddly, it would not have authorized any other means for them to nominate. The bill was defeated in Committee after witnesses from the Libertarian Party, the Green Party, the NAACP, and College Republicans testified against the bill.

Minnesota: SF 1331 was vetoed by the Governor on May 22. It would have moved petition deadlines for independent and minor party candidates to earlier dates. The non-presidential petition deadline would have moved from July to June; the presidential petition from September to August; and the petition to recognize a new party from May to April.

HIGH COURT WON'T HEAR ILLINOIS BALLOT ACCESS CASE

On May 18, the U.S. Supreme Court refused to hear Stevo v Keith, 08-1187, the case challenging the number of signatures for independent candidates for the U.S. House in Illinois. Illinois requires exactly 5,000 signatures in years ending in "2", but approximately 10,000 in other years.

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This update is the product of Richard Winger at Ballot Access News, the nation's best source for ballot access updates. For much more complete and detailed information, updated regularly, see http://www.ballot-access.org/ and subscribe.

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