Ballot Access News

March 2020 – Volume 35, Number 9



FOR FIRST TIME, U.S. HAS MORE REGISTERED INDEPENDENTS THAN REGISTERED REPUBLICANS

The latest registration totals reveal that there are now more registered independents than registered Republicans. This is the first time in U.S. history that one of the two major parties has been outnumbered by registered independents. In the past, ever since the beginning of partisan voter registration in the 1900’s decade, each of the two major parties always had more registered members than any other party, and also each major party outnumbered independents.

Many people believe that independents already outnumber both major parties, but they are deceived because the media reports public opinion polls that ask voters their affiliation. These polls usually show that independents, hovering around 40%, are more numerous than either major party. But the actual, hard data from voter registration statistics has always before put independents at number three, behind each of the two dominant parties.

The number of registered Republicans has increased since 2018, but the number of registered independents has increased much more sharply.

See the chart further down in the newsletter for the data. The chart also shows that Libertarian registration has increased by approximately 50,000 since October 2018, even though the party lost its qualified status in 2018 in Alaska, Iowa, Maine, Maryland, New Hampshire and Pennsylvania. That caused those states to print new registration forms that deleted the checkbox for the Libertarian Party. Most of those states let the party keep its registrants, but Maine and New Hampshire converted all the registered Libertarians to independents.

No third party in U.S. history has ever had as many registrants as the Libertarian Party does currently.

FLORIDA BALLOT ACCESS LAWSUIT FILED

On February 24, the Independent Party of Florida and the Party for Socialism and Liberation filed a lawsuit against the 2011 Florida law that restricts presidential ballot access for qualified parties. Independent Party of Florida v Lee, n.d., 4:20cv-110. It is assigned to U.S. District Court Judge Mark Walker, an Obama appointee.

The 2011 law said that even though a party is on the ballot, it can’t nominate candidates for president unless the party is either recognized by the Federal Election Commission as a national committee, or unless it submits a petition of 1% of the registered voters, which is currently 132,781 signatures.

The law was not enforced for the 2012 presidential election, because on September 1, 2011, Secretary of State Kurt Browning said he has no official knowledge of which parties are recognized by the FEC, so he couldn’t enforce it. Therefore, in 2012, the Peace & Freedom, Objectivist, Justice, American Independent, and Socialism & Liberation Parties were on the ballot for president, even though they weren’t FEC-recognized.

But on September 7, 2016, a different Secretary of State, Kenneth Detzner, reversed the 2011 ruling and disqualified the presidential nominees of the Independent, Socialism & Liberation, and American Independent Parties. The 2016 letter came after those three parties had already submitted their presidential electors, and were already expecting to be on the ballot. There was no time for any of those parties to sue over the 2016 action because the ballots were about to be printed..

The FEC recognizes national committees of parties that want that recognition. The only reason a party ever wants recognition from the FEC is so that it can receive larger donations to spend on its federal campaign activity. The downside of obtaining FEC recognition is that the party then must expose information about how the party is financed.

Many minor parties have never wanted national committee status, and instead handle campaign finance for their presidential campaign through the candidate’s own committee. Such parties include the New Alliance Party (which placed its presidential nominee on the ballot in all states in 1988), the Communist Party, the Socialist Workers Party, the Workers World Party, the Socialist Equality Party, and the Prohibition Party.

The major flaw in the Florida law is that FEC recognition has nothing to do with popular support for the party. For example, the Socialist Party was recognized on December 4, 1980, but in the preceding month, it had only polled 6,898 votes for President. By contrast, the FEC denied recognition to the Green Party on November 18, 1996, even though it had just polled 685,040 votes for president that month.

Also, the FEC won’t recognize parties that are only organized in one state. In 1976 it denied recognition to the Liberal Party of New York, even though the party always had a presidential nominee and many congressional nominees. The Independent Party, which had nominated Evan McMullin for president in 2016, thus could never be FEC-recognized, even if it wanted to be. Parties that only exist in a single state commonly nominate presidential candidates, and have done so in a majority of states.

U.S. SUPREME COURT ASKS FOR RESPONSE FROM ARIZONA IN BALLOT ACCEESS CASE

On January 30, the U.S. Supreme Court asked Arizona to respond to the cert petition filed by the Arizona Libertarian Party. The case is Arizona Libertarian Party v Hobbs, 19-757.

People who have studied U.S. Supreme Court behavior have calculated that if the Court asks for a response, there is a 16% chance that the Court will then agree to hear the case. If the Court hears this case, it will be the first time it has accepted an election law appeal filed by a minor party or independent candidate since 1991 (excluding cases in which a major party and a minor party were both on the same side in the lawsuit).

If the Court had not asked for a response, it would have considered the case at its February 21 conference.

The issue in the case is the 2015 Arizona law that makes it extremely difficult for a member of a small ballot-qualified party that has been on the ballot for at least four years to get on his or her own party’s primary ballot. The U.S. Supreme Court has never heard a case involving ballot access petitions to get on a primary ballot. The Ninth Circuit had upheld the law, even though since the law was passed, no Libertarian has ever been able to get on the Libertarian primary ballot for any federal or state office. The law has no effect on presidential elections.

The last time the U.S. Supreme Court asked for a response, after a minor party or independent candidate filed a cert petition, was 2011, in a Hawaii ballot access case filed by Ralph Nader, Nader v Nago, but eventually the Court declined to hear that case. The issue in that case was the irrational Hawaii law that required an independent presidential candidate to submit six times as many signatures as are needed for an entire new party. The Ninth Circuit had upheld it.

UTAH HOUSE PASSES REPEAL OF STRAIGHT-TICKET DEVICE

On February 13, the Utah House passed HB 70, by a vote of 46-26. It repeals the straight-ticket device. If it passes the Senate and the Governor signs it, the only states that will still have a straight-ticket device are Alabama, Indiana, Kentucky, Michigan, Oklahoma, and South Carolina.

Repeal bills are pending in Indiana, Kentucky, Oklahoma, and South Carolina, but so far they haven’t made any headway.

BALLOT ACCESS BILLS

Alabama : on February 11, the Senate Government Affairs Committee voted not to advance SB 70, the bill which would have cut the number of signartures for a newly-qualifying party from 3% of the last gubernatorial vote, to 1.5%. It also would have moved the petition deadline from March to July.

Minnesota : SF 752, which makes many ballot access improvements and which had been introduced in January 2019, finally had a committee hearing on February 20, 2020. It cuts the party petition from 5% of the last vote cast to exactly 20,000 signatures, lowers the vote test from 5% to 1%, deletes the language on independent candidate petitions that says the signer doesn’t expect to vote in a primary for that office, and lets signers sign for more than a single candidate per office. The bill will get a vote in the Senate State Government Finance & Policy & Elections Committee.

New Hampshire : on February 19, the House defeated HB 1214 in a voice vote. It would have eased ballot access for minor parties, by providing that if a group has 500 registered members, it may be on the general election ballot, after nominating by convention. The House also defeated HB 1403, which would have changed general election ballots from a party-column format to an office-group format.

Oregon : on February 13, the House passed HB 4026 by a vote of 43-15. It makes it easier for a party to remain on the ballot, by cutting the registration test from one-half of 1% of the state total, to one-fourth of 1%. The bill passed the Senate Rules Committee on February 24. The bill was introduced at the request of the Working Families Party.

Utah : SB 28 passed the Senate on February 19. It deletes the ballot language for independent candidates that says the candidate is "not qualified" for a party nomination, a phrase that suggests the candidate is not qualified for the office.

West Virginia : on February 14, the Senate passed SB 733 by a vote of 24-7. It changes the definition of a qualified party from one that polled 1% for Governor, to one that polled 1% for either President or Governor.

NEW MEXICO RULING ON DEFINITION OF MAJOR PARTY

On January 28, the New Mexico Secretary of State said the Libertarian Party continues to be a "major political party". Section 1-7-7 of the election law says a "major political party" means "any qualified party, any of whose candidates received as many as 5% of the total number of votes cast at the last preceding general election for the office of Governor or president of the United States, as the case may be."

In 2018, the New Mexico Libertarian Party did not run anyone for Governor, but it got over 5% of the total gubernatorial vote for its nominees for U.S. Senate and Land Commissioner. In the past, some Secretaries of State have said they believe only the vote for President or Governor counts, although if anyone reads the law carefully, "any" surely means "any", not just Governor or President.

Until last month’s ruling, the current Secretary of State, Maggie Toulouse Oliver, had declined to express her own opinion about how the law should be interpreted.

LAWSUIT NEWS

Alabama : the Libertarian Party is currently suing the Secretary of State over the policy that gives the qualified parties a free list of the registerd voters, but charges approximately $34,000 for unqualified parties. The Secretary of State is spending thousands of dollars to defend the policy, even though if the state agreed to give the list to all parties that are petitioning, that would probably cost the state virtually no money. The state has not only deposed every plaintiff, it has hired a political science professor and is paying her $300 per hour for her to prepare an expert report in defense of the state policy. The expert report says that major parties perform different functions than minor parties do, and therefore it is sensible to discriminate. It is true that in the U.S., minor parties to tend to fulfill a different role than major parties. But both types of party can only play their role if they are on the ballot, and the state’s policy makes it more difficult for minor parties to be on the ballot.

Colorado and Washington : the U.S. Supreme Court will hear the "disobedient" presidential elector case on April 28. Chiafalo v Washington and Colorado Dept. of State v Baca, 19-465 and 19-608. This is the case on whether presidential electors have the freedom to vote for any qualified presidential candidate or not.

Delaware : the U.S. Supreme Court will hear Carney v Adams, 19-309, on March 25. This is the case over the Delaware law that says only members of parties with at least 5% of the registration may be appointed to most of the state courts. The lower court had struck down the law, on behalf of an attorney who is a registered independent.

Kentucky : the state did not appeal the ballot access case that the Libertarian Party won on January 22, against the law requiring party members who want a party convention nomination for a state office to file a declaration of candidacy in January of an election year. Sweeney v Crigler, e.d., 2:19cv-46.

Florida : on February 19, the Eleventh Circuit agreed with the U.S. District Court and upheld an injunction that permits ex-felons to register to vote even though they still owe restitution, court costs, or fines, but only if they can’t afford to pay. Jones v Governor of Florida, 19-14551. If the ruling is not overturned, it could potentially allow as many as one million individuals to register to vote.

Georgia : the Eleventh Circuit will hear Cowen v Raffensperger, 19-14065, the week of May 18-22. This is the lawsuit over ballot access for minor parties for U.S. House.

Illinois : on February 20, U.S. District Court Judge John R. Blakey issued an injunction, requiring Chicago to allow petition circulation in Millenium Park, the city’s largest park. The case had been filed by a group that is trying to get a ballot measure on the Chicago ballot. Swart v City of Chicago, n.d., 1:19cv-6213.

Minnesota : a U.S. District Court will hear Libertarian Party of Minnesota v Choi, 0:19cv-2312, on May 19. The case challenges the law that says independent candidate petitions must say that the signer doesn’t intend to vote in the primary for the office being sought by that independent candidate.

New York : two lawsuits are pending in State Supreme Court, Niagara County, over whether the legislature had the authority to let the Commission re-write the ballot access laws. They are Hurley v Commission, E169547/2019, filed by the Working Families Party; and Jastrzemski v Commission, E169561/2019, by the Conservative Party. The judge who is hearing the cases has told both sides that he will rule in the first week in March.

North Carolina : the Fourth Circuit will hear Kopitke v Bell, 19-2355, in the first week of May. This case challenges the March petition deadline for independent candidates, and the number of signatures, which for 2020 for statewide independents is 70,666.

Pennsylvania : on January 31, U.S. District Court Judge Yvette Kane issued a TRO to let out-of-state circulators work on presidential primary petitions. Accelerate 2020 v Boockvar, m.d., 1:20cv-128.

BOOK REVIEW: THE LOWEST EBB

The Lowest Ebb: Norman Thomas & America’s Minor Parties in 1944, by Darcy G. Richardson, 770 pages.

Darcy Richardson is the nation’s master story-teller for minor party history. The Lowest Ebb is only the second book ever published about the 1944 presidential election. That is odd, because it seems that this election, conducted in the middle of an intense war, is one of the most fascinating elections the U.S. has ever experienced. Wartime restrictions meant that minor party candidates had to beg permission to obtain aviation or automobile fuel, or to buy a new automobile. On the other hand, minor parties that year had the right to have equal time for broadcasting their national conventions and other campaign events, and once broadcast, the federal government was obliged to re-broadcast radio recordings to troops overseas.

The 1944 election was also notable for the vigorous attempts by conservative Democrats in the south to place anti-Franklin D. Roosevelt electors on the ballots, and the book’s account of that is very interesting for anyone who is interested in the electoral college.

The book could be considered another in the series of Richardson’s four earlier books that were titled Others (volumes one, two, three and four, covering different eras). Others IV, published in 2008, covered history 1920-1930, and The Lowest Ebb not only covers 1944, but the period 1930 through 1944, at least as to the Socialist, Prohibition, Communist, Socialist Labor Parties, as well as some others. I found reading The Lowest Ebb to be pure pleasure, and if you are interested in the contents of BAN, you probably will have the same reaction.

EARLY 2020 VOTER REGISTRATION TOTALS

The chart on page four shows registration data by party, by state. All figures are as of January or February 2020, except the Florida minor party figures are from October 2018. New Florida minor party data will be out in March.

State Dem. Rep. Indp, misc Lib’t. Green Consti. Wk Fam Reform other Alaska 74,652 141,171 337,901 7,259 1,631 563 ? ? 18,852 Arizona 1,228,745 1,363,935 1,301,292 32,677 6,699 ? ? ? – – Arkansas 83,892 99,553 1,551,833 446 63 ? ? ? – – Calif. 9,109,939 4,842,603 5,505,751 176,065 89,764 93 ? ? 704,055 Colorado 1,030,764 971,070 1,361,068 37,419 8,577 9,912 ? ? 2,806 Conn. 810,878 459,558 873,788 2,912 1,495 14 349 11 29,550 Delaware 339,612 198,525 166,612 1,737 724 276 329 47 8,136 Dt. Col. 374,482 28,445 85,980 1,755 3,656 ? ? ? – – Florida 5,039,757 4,793,897 3,633,003 32,843 6,915 1,724 ? 1,407 59,622 Idaho 112,411 439,906 308,784 8,416 ? 3,277 ? ? – – Iowa 614,519 639,969 746,492 13,994 3,148 0 0 0 – – Kansas 456,098 803,475 557,573 18,221 0 0 0 0 0 Kentucky 1,679,795 1,473,105 292,497 9,950 1,583 628 ? 85 189 Louis’na 1,215,977 905,634 651,884 13,539 2,193 158 0 1,048 85,375 Maine 347,948 285,627 371,305 237 43,143 ? ? ? 19 Maryland 2,210,929 1,011,296 796,786 17,931 7,089 ? ? ? 524 Mass. 1,491,600 462,586 2,601,908 19,851 3,807 281 55 123 1,108 Nebraska 355,016 577,536 261,433 15,360 ? ? ? ? – – Nevada 610,911 527,641 373,511 16,224 2,267 71,335 ? ? – – N. Hamp. 276,385 288,464 415,871 ? ? ? ? ? – – N. Jersey 2,320,265 1,337,285 2,388,497 16,296 10,930 16,117 ? 1,886 29,241 N. M. 580,999 386,872 288,122 11,326 4,101 389 ? ? 6,771 N. York 5,900,507 2,611,227 2,520,834 13,567 24,504 ? 40,335 2,058 588,104 No. Car. 2,523,387 2,075,373 2,294,556 40,121 2,080 3,096 ? ? – – Okla. 738,256 1,008,569 332,111 11,171 ? ? ? ? – – Oregon 973,766 701,878 977,950 19,355 8,284 3,713 9,464 ? 126,340 Penn. 4,038,832 3,250,309 1,171,926 40,324 9,547 ? ? ? – – Rhode Is. 307,697 95,834 383,217 ? ? ? ? ? – – So. Dak. 154,162 258,377 130,214 1,903 ? 515 ? ? – – Utah 190,135 675,205 508,131 19,401 1,863 5,428 ? ? 52,055 W. Va. 484,267 412,688 315,318 7,538 2,314 167 ? ? – – Wyo. 39,369 156,407 23,975 1,396 0 402 ? ? – – TOTAL 45,715,952 33,284,020 33,530,123 609,234 246,377 118,088 50,532 6,665 1,712,747 Percent 39.66% 28.87% 29.09% .53% .21% .10% .04% .01% 1.49%

The registration for "Other parties" is:

Alaska : Alaskan Independence 17,213; Veterans 1,238; Moderate 134; UCES Clowns 95; Patriot’s 85; Progressive 61; Owl 20; Alliance 6.

California : American Independent 600,220; Peace & Freedom 94,016; Common Sense 9,819.

Colorado : Unity 1,657; Approval Voting 1,149.

Connecticut : Independent Party 29,550.

Delaware : Independent Party 7,316; American Delta 711; Socialist Workers 109.

Florida : Independent Party 58,413; Socialism and Liberation 606; Ecology 603.

Kentucky : Socialist Workers 189.

Louisiana : Independent Party 85,375.

Maine : Socialist 15; Alliance 4.

Maryland : Bread & Roses 524.

Massachusetts : Socialist 1,092; Prohibition 16.

New Jersey : Conservative 15,476; Socialist 7,108; Natural Law 6,657.

New Mexico : Better for America 3,597; Independent American 3,174.

New York : Independence 439,552; Conservative 147,606; Women’s Equality 7,207; SAM 348.

Oregon : Independent Party 124,048; Progressive 2,292.

Utah : Independent American 50,365; United Utah 1,690.

Totals October 2018 were: Democratic 44,780,772 (39.82%), Republican 32,854,496 (29.22%), independent & miscellaneous 32,322,402 (28.74%), Libertarian 548,399 (.49%), Green 249,260 (.22%), Constitution 105,668 (.09%), Working Families 52,613 (.05%), Reform 6,177 (.01%), other parties 1,534,330 (1.36%).

Totals October 2016 were: Democratic 45,690,825 (40.60%), Republican 33,052,332 (29.37%), independent & miscellaneous 31,200,104 (27.72%), Libertarian 497,535 (.44%), Green 256,560 (.23%), Constitution 92,483 (.08%), Reform 5,294 (.00+%), Working Families 61,517 (.05%), other parties 1,662,329 (1.50%).

Totals October 2012 were: Dem. 43,512,746 (41.85%), Rep. 31,298,863 (30.10%), indp. & misc. 26,808,810 (25.79%), Libertarian 330,811 (.32%), Green 250,682 (.24%), Constitution 77,918 (.07%), Reform 22,880 (.02%), Americans Elect 6,408 (.01%), other parties 1,659,537 (1.60%).

Totals October 2008 were: Dem. 43,933,901 (43.62%), Rep. 30,944,590 (30.72%), indp. & misc. 24,157,259 (23.98%), AIP/Constitution 438,222 (.44%), Green 255,019 (.25%), Libertarian 240,328 (.24%), Reform 32,961 (.03%), other parties 675,980 (.67%).

Totals October 2004 were: Dem. 37,301,951 (42.19%), Rep. 28,988,593 (32.79%), indp. & misc. 20,471,250 (23.15%), Constitution 320,019 (.36%), Green 298,701 (.34%), Libertarian 235,521 (.27%), Reform 63,729 (.07%), Natural Law 39,670 (.04%), other parties 695,639 (.79%). See top article in this newsletter for more information.

PRESIDENTIAL PRIMARY CANDIDATES ON BALLOTS

This chart shows which presidential primary candidates will be on ballots in the states in which filing closed during February. The three previous B.A.N. issues had similar information for states in which filing had closed earlier than February. There will be a similar chart in the April B.A.N. for the remaining jurisdictions: District of Columbia, Montana, New Jersey, Oregon, and South Dakota, the five places where filing doesn’t close until sometime in March.

Among the seven states included in this chart, only three parties have any presidential primaries. The three parties are Republican, Democratic, and Libertarian. Of the seven states listed here, Libertarians only have presidential primaries in Nebraska, New Mexico, and New York, so for the other four states, the Libertarian column has two dashes, indicating there is no primary.

When one looks at this chart and the similar charts in the three previous issues, one sees that the number of Democratic and Republican presidential candidates decreased with time. This is not surprising, because many Democratic candidates have been dropping out, and a few Republicans have as well. Oddly, though, the number of Libertarian presidential candidates running in a primary has been increasing. The three Libertarians listed on this chart, but whom had not qualified for a Libertarian presidential primary in any of the states with earlier deadlines, are Sorinne Ardeleanu, Lincoln Chafee, and John Monds.

DEMOCRATS CONN. DEL. INDIANA NEB. N. MEX. N. YORK PENN. Michael Bennet ~ ~ ~ ~ X X ~ Joe R. Biden X X X X X X X Michael R. Bloomberg X X X X X X X Pete Buttigieg X X X X X X X Tulsi Gabbard X X X X X X X Amy Klobuchar X X X X X X X Deval Patrick ~ ~ ~ ~ ~ X ~ Bernie Sanders X X X X X X X Tom Steyer X X X X X X X Elizabeth Warren X X X X X X X Andrew Yang ~ ~ X ~ X X ~ REPUBLICANS Rocky De La Fuente X X ~ ~ ~ X ~ Donald J. Trump X X X X X X X Joe Walsh ~ ~ ~ ~ ~ X ~ Bill Weld X X X X X X X LIBERTARIANS Max Abramson – – – – – – X X ~ – – Sorinne Ardeleanu – – – – – – ~ X ~ – – Ken Armstrong – – – – – – ~ X X – – Dan Behrman – – – – – – X X X – – Lincoln Chafee – – – – – – X X X – – Jacob Hornberger – – – – – – X X X – – Jo Jorgensen – – – – – – X X ~ – – Adam Kokesh – – – – – – X X X – – John Monds – – – – – – ~ X ~ – – James Ogle – – – – – – ~ X ~ – – Sam Robb – – – – – – ~ X X – – Vermin Supreme – – – – – – ~ ~ X – – Arvin Vohra – – – – – – ~ X ~ – – Mark Whitney – – – – – – ~ ~ ~ – –

SOCIALIST WORKERS TICKET

On January 29, the Socialist Workers Party announced that its presidential candidate is Alyson Kennedy, and the vice-presidential nominee is Malcolm Jarrett. Kennedy was also the party’s presidential nominee in 2016.

MINNESOTA SPECIAL ELECTION

On February 4, Minnesota held a special election to fill the vacancy in State House district 60A. The only two candidates were the nominees of the Democratic-Farmer-Labor Party and the Legal Marijuana Now Party. The latter party nominated Marty Super, and he received 11.6%.

SOCIALIST EQUALITY TICKET

In January, the Socialist Equality Party announced that its presidential candidate is Joe Kishore, and the vice-presidential nominee is Norissa Santa Cruz.

FREE & EQUAL PRESIDENTIAL DEBATE

Free & Equal will host a presidential debate in Chicago on March 4. One session will include eleven presidential candidates; the other will include ten.

The debate includes the presidential nominees of four parties: Gloria La Riva of Socialism & Liberation; Brian Carroll of American Solidarity; Ben Zion of Transhumanist; and John Richard Myers of Life & Liberty.

The debate also includes one independent candidate, Mark Charles. It includes two Republicans, Robert Ardini and Zoltan Istvan. It includes two Democrats, Mosie Boyd and Mark Stewart. It includes two Greens, Howie Hawkins and Sedinam Moyowasifza-Curry. It includes two Constitution Party candidates, Don Blankenship and Charles Kraut. It includes eight Libertarians: Ken Armstrong, Souraya Faas, Erik Gerhardt, Jo Jorgensen, Adam Kokesh, Sam Robb, Vermin Supreme, and Arvin Vohra.

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