Full and fair access to the electoral process is a right central to democracy
Coalition for Free and Open Elections
COFOE MEETING OF APRIL 3, 2005
The meeting was held at 1:30 pm on Sunday, April 3, in the law office of Jim Clymer in Lancaster, Pennsylvania. In attendance were:
1. Committee for a United Independent Party, Harry Kresky
2. Constitution Party, Jim Clymer
3. Green Party, Phil Huckelberry (representing national party) and Kevin Murphy (Pa. Green Party)
4. Libertarian Party, Richard Winger
5. Nader 2004 campaign, Mike Richardson
6. Reform Party, Tom McLaughlin
7. Socialist Party, Elliot Traiman and Alice Kelsey
Minutes of last year's meeting were summarized. New officers were elected to one-year terms: Chair Tom McLaughlin, Vice-Chair Jim Clymer, Secretary Richard Winger, Treasurer Alice Kelsey.
A report on the lawsuits sponsored by COFOE was presented. The North Carolina case, DeLaney v Bartlett, was won in September 2004. The number of signatures for an independent candidate for statewide office was declared unconstitutional. The state did not appeal. The attorney who handled this case, Kris Williams, will refund $2,000 to COFOE when he gets his attorney's fees from the state.
The Louisiana case, Rosenthal v McKeithen, was mooted when the 2004 session of the legislature fixed the problem being complained of. The old law, which we challenged, left all partisan labels off the ballot for candidates who were not members of qualified parties. Only the Democrats and Republicans were qualified, under the old law, since only they had 5% of the registration and only they had polled 5% for president in 2000. The new law says independent candidates will have the label "no-party", and a qualified party is something that has 1,000 registered members and pays a one-time only $1,000 fee. The lawsuit has been dismissed. We cannot get our $1,000 attorneys' fees back since we didn't win in court, even though in the final analysis, we won.
The Michigan case, over whether a party can change its name, was never filed, because the intended plaintiff, the Constitution Party of Michigan, didn't want the case filed. COFOE's $1,000 was returned by attorney Robert Bernhoft of Wisconsin.
The Illinois case, Lee v Keith, is still pending in U.S. District Court in Springfield, Illinois. It challenges the 10% petition, and the December of the year before the election, petition deadline, for independent candidates for legislature. The attorney is Dan Johnson-Weinberger. If this case wins, the Illinois legislature will be forced to alter the law, and if that happens, maybe we can get some other improvements in the same bill.
It was suggested that COFOE consider making a contribution to two new lawsuits. One lawsuit has already been filed in New Hampshire in state court, without help from COFOE so far. It charges that the New Hampshire ballot access requirements for minor and new parties are so harsh, as to violate the State Constitution. Although the state courts of Alaska, Maryland and Michigan have thrown out restrictive ballot access laws (for minor parties) that had passed muster in the federal courts, on the theory that the state constitution gives more voting rights protection than the U.S. Constitution, the New Hampshire lawsuit seems to be a long-shot. It was filed by the Libertarian and Constitution Parties of New Hampshire. The statewide minor party candidate petition is 3,000 signatures; the petition to create a new party is 3% of the last gubernatorial vote; the vote test for a party to remain on is 4% of the gubernatorial or US Senate vote. Although these laws are burdensome, there is no precedent from any state court, or federal court either, invalidating requirements of that level. The Board voted not to fund this lawsuit.
The other lawsuit has not yet been filed. It would challenge a California law that makes it virtually impossible for qualified small parties to nominate anyone by write-in vote in their own primaries. The law requires a write-in winner to not only outpoll his or her opponents, but to poll approximately 100,000 write-ins for statewide office, 2,500 for State Senate, 2,000 for US House, and 1,250 for Assembly. Smaller qualified parties generally don't have enough registered members for any write-in candidate to receive this many write-in votes.
Hope for overturning the California law comes from Prop. 60, which the California voters added to the California Constitution in November 2004. It says, "A political party that participated in a primary election for a partisan office has the right to participate in the general election for that office and shall not be denied the ability to place on the general election ballot the candidate who received, at the primary election, the highest vote among that party's candidates." Since this is in the Constitution, it supersedes ordinary laws, so the lawsuit is likely to win. It is even possible that the state will concede that the law restricting write-in winners is unconstitutional. The COFOE board voted to contribute $1,000 to the proposed lawsuit's legal expenses.
The Pennsylvanians who were at the meeting reported on the existence of the Pennsylvania Ballot Access Coalition, which has presented testimony to the Pennsylvania Governor's Commission on Revising the Election laws. If nothing is done to change the Pennsylvania law, 66,827 signatures will be needed for statewide minor party and independent candidates in 2006. This is more than twice the usual requirement. It is caused by the accident that no statewide judicial races are being held in 2005, so the number of signatures is instead being determined by the 2004 election returns, when turnout was much higher than it is in the normal odd-year judicial elections.
The Board voted to continue requiring each organization that is represented on the Board to contribute $50 per year to COFOE. The Secretary will send an invoice to each organization.
Board members discussed legal strategy. Mike Richardson expressed the desire for a lawsuit that would attack the fundamental ballot access problems. Unfortunately, in 1971 the US Supreme Court unanimously upheld Georgia's very severe ballot access laws (separate petitions for each minor party and independent candidate, signed by 5% of the number of registered voters, for all groups that had not polled 20% for president in the entire USA, or 20% for Georgia Governor). That case was called Jenness v Fortson. Since then, Georgia has eased its statewide petition to 1% of the number of registered voters, but still has the 5% requirement for district and county offices. Also, if a party polls approximately 2% for any statewide race, it is ballot-qualified, but only for statewide office, not district office. This combination of laws has kept all minor party and independent candidates off the ballot for U.S. House since 1964 (when an independent qualified). Richard Winger expressed the hope that either or both the Green and Constitution Parties would qualify statewide in Georgia. After they attain statewide status, they could sue over the fact that (even though they have enough support to be a qualified party for statewide office) they are not considered to have enough support to be ballot-qualified for district office. The only party that has statewide status, the Libertarian Party, has already sued over this, and lost. A new lawsuit, with prestigious attorneys (perhaps from the ACLU national voting rights office, which happens to be in Atlanta, Georgia) might win, but the Libertarian Party could not be a plaintiff, since it has already tried and lost. Either the Green or Constitution Parties, if they were on statewide, would be good plaintiffs. Even better would be a lawsuit in which they were co-plaintiffs.
Any day now, the US Supreme Court will issue a decision in Clingman v Beaver, a case involving the Oklahoma Libertarian Party. Although this is not a ballot access case, it is possible that the US Supreme Court decision, when it comes, may say something useful about the rights of minor parties in elections generally. Until the decision comes, it is difficult to plan any more ideas for grand strategy.
Phil Huckelberry reported on the recent defeat in court for the Illinois Green Party, against a state law that makes it illegal for a new party to run candidates unless it runs a full slate of candidates.
Alice Kelsey suggested that each member-political party should do what it can to introduce its activists to COFOE, perhaps through the medium of Ballot Access News. COFOE gets virtually all of its funding from BAN readers who join COFOE.
COFOE has never had a web page. Kevin Murphy volunteered to set one up. He also volunteered to set up a e-mail group for COFOE board members.
Harry Kresky reported on his interesting lawsuit against the Democratic National Committee for using public funds to prevent voters from voting for Ralph Nader. It is in federal court in New York.
Phil Huckelberry volunteered to ask Brent McMillan (in the Green Party's national office in Washington DC) to set up a PO Box address for COFOE. The mail would be forwarded to whoever was chair.
Mike Richardson mentioned bills in Congress that should be supported, especially Congressman Jesse Jackson Jr.is HJR28, which would add a right to vote to the U.S. Constitution.
Mike Richardson also mentioned the Commission headed by former president Jimmy Carter, and former Secretary of State James Baker, which is to study improvements to elections. The Commission is taking testimony on April 18, but is quite restricted in which witnesses it is willing to hear.
The meeting was adjourned at 4 p.m. A general expectation is that the next meeting will be in one year, but no place was set. The location of the annual meeting is generally not determined until a few months before the meeting, since the decision depends on who is coming and where they live.