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Showing content from http://ballot-access.org/2020/11/21/november-2020-ballot-access-news-print-edition/ below:

November 2020 Ballot Access News Print Edition |

JUSTICES NEIL GORSUCH AND BRETT KAVANAUGH EXPRESS SYMPATHY FOR INDEPENDENT VOTERS

On October 5, the U.S. Supreme Court heard Carney v Adams, 19-309. This is the case over Delaware’s Constitution, which says that no one is eligible to be a member of the three most important state courts unless that individual is a registered member of a party that has voter registration of at least 5%. This means that an independent, or a member of a minor party (qualified or not) can never qualify for a seat on the State Supreme Court, Superior Court, or Court of Chancery.

This is the first case to be heard in the U.S. Supreme Court involving the interests of independent voters, or members of minor parties, since 2005. Therefore, regardless of which side wins, the decision inevitably will say something about the attitude of members U.S. Supreme Court toward these voters.

The lawsuit was brought by James R. Adams, a Delaware attorney who is a registered independent and therefore ineligible to be appointed to any of the three most important courts. He won the case in the lower courts.

At the oral argument, both of the two newest justices, Neil Gorsuch and Brett Kavanaugh, made strong statements that show they do have sympathy for individuals who are registered independents.

Justice Gorsuch

Neil Gorsuch asked the attorney for the state government to respond to this lengthy question: "The major party provision prohibits independents from service, serving as judges. That’s quite a sweeping rule. And I – as I understand you, you’ve indicated that you’d agree that that violates the Equal Protection Clause as applied to elected positions. But you indicate that it’s somehow very different with respect to appointed positions.

"And I guess I’m not clear why, given the absence of any historically-rooted tradition along these lines with respect to the major party requirement. I understand your argument that it serves as a backstop for the bare majority rule, which does have historical antecedents, plenty of them, but, none of these has ever included this backstop before. This is a novel thing. And it does prohibit a great percentage of the population from participating in the process."

Gorsuch is correct when he says the exclusion applies to "a great percentage of the population." The Delaware rule excludes 24.5% of all the voters from being considered for the various judicial positions.

Gorsuch’s reference to a "backstop" pertains to the fact that Delaware has two laws on the subject of the registration of its judges. The other law, which is not being challenged in this case, says no state court of any type can have more than a bare majority of its members from a single political party. Gorsuch, and several other justices, seem perplexed that if Delaware just wants political balance on its courts, the "bare majority" provision all by itself ought to serve that interest, without also excluding independent and minor party registrants.

Justice Kavanaugh

Brett Kavanaugh also seemed supportive of independent voters. He said, "Could a state exclude Republicans and Democrats from being judges and allow only independents to be judges?" After listening to a response from the attorney for the state, he said, "Why can’t – to pick up on Justice Sotomayor’s question, why can’t independents even better serve the goal of a balanced judiciary nonpartisan/bipartisan judiciary?"

After hearing yet another response, Kavanaugh said, "Well, I guess there’s a mismatch, arguably, between the State’s interest and excluding independents altogether from being judges, because independents could certainly – wouldn’t you agree that independents could serve the purpose of achieving a balanced nonpartisan or bipartisan judiciary."

Other Justices

Justices Stephen Breyer and Sonia Sotomayor were also supportive. Sotomayor is herself a registered independent, although neither she nor anyone else mentioned that fact. Both justices stated that because Delaware has the other law preventing any party from holding more than a bare majority on any particular court, that alone should handle the state’s asserted interest of having a balanced judiciary.

Breyer did not refer to independents, but he said, "How do you get around the fact that they way that it’s written and applied is you have to be a Republican or a Democrat? And there are other parties. And so why is that constitutional? At another point he said,, "The Green Party need not apply. It can’t."

Justice Elena Kagan focused mostly on the standing issue. It is difficult to tell which way she is leaning on that.

No justice expressed support for the idea of excluding independents. The attorney for the state constantly implied that all minor party members and all independents are ideological soul-mates for one of the two major parties. Although no justice attacked that idea, it is clearly not true. The largest minor party in Delaware is the Independent Party, which is a centrist party. No one made any reference to the Independent Party, or to any minor party other than the Green Party.

Many would argue that the Libertarian Party is equally divergent from both major parties, and one could put up an argument about the Green Party also. Many Green Party activists were formerly Republicans before they were Greens.

The attorney for the state made a potential blunder when he said, "Political party in this country is – it’s universally used by political science and scientists as the proxy for a philosophy and ideology."

If that is true, then the Delaware law clearly violates the First Amendment. One of the most famous quotations about the First Amendment was made by U.S. Supreme Court Justice Robert H. Jackson in 1943, in West Virginia State Board of Education v Barnette, 319 U.S. 624: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion." If political party is just a proxy for ideology, then the Delaware law suppresses some ideologies and boosts others.

To the extent that the justices gave the plaintiff a hard time, it was over three points: (1) he had said "he would consider and apply" for any judicial position if he could, but of course he couldn’t obtain such an appointment because he is a registered independent. Some of the justices felt he may lack standing, because he should have said, "I would apply" instead of what he did say. Also he was attacked because even though he had said he was interested in joining any of the five types of court, he never actually applied for the two types of unimportant court for which independents are eligible (the Family Court and the Court of Common Pleas).

He was also attacked for having seemed to argue that he was also challenging the law that said no single party could have more than a bare majority of the membership of any court. However, at the oral argument, his attorney said Adams does not challenge that law in this lawsuit.

Finally, he was attacked for having seemed to argue in the courts below that the two types of law (the exclusion of minor party and independent members, as well as the law saying no party could have more than a bare majority) could not be severed from each other, and that if one law fell, the other one must also fall. The lower courts felt the two provisions could not be severed from each other, and had struck down both. But Adams disavowed the need to strike down the bare majority law.

It doesn’t seem likely that the Court will rule against Adams on standing, because the Justices must know that if they do that, inevitably another Delaware attorney who is registered as an independent, or as a member of a minor party, would file an entirely new lawsuit, and avoid making any mistakes to deprive himself or herself of standing.

And even if the Court does rule against Adams on standing, it seems likely that the decision will say something sympathetic to independent and minor party individuals.

Justices Clarence Thomas and Sam Alito hinted that they believe the Tenth Amendment forbids federal courts from interfering with state laws on the composition of its own judiciary, but this is not likely to be the position of any of the other justices. Chief Justice John Roberts seemed the most likely justice to rule that Adams lacks standing.

U.S. SUPREME COURT KEEPS RANKED CHOICE VOTING FOR PRESIDENT

On the evening of October 6, U.S. Supreme Court Justice Stephen Breyer rejected an appeal from Maine Republicans to stop ranked choice voting from being used for president this year. Thus Maine will be the first state in history to use ranked choice voting for president in a general election. Jones v Dunlap, 20A57. The actual issue in the case was whether the Republican-backed referendum should be on the ballot. If it had qualified, then RCV could not have been used in 2020.

ALASKA PARTY LABEL WIN AFTER ALL

The October 1 B.A.N. said that the Alaska Libertarian Party lawsuit to restore party labels for the nominees of unqualified parties had failed in court. But, even though the state court refused injunctive relief, on September 26 the Division of Elections reconsidered its position, and reprinted all the ballots from the legislative districts in which the state had stripped the party label. The new ballots have the label. The only affected parties were the Libertarian Party and the Veterans Party. Neither party happened to have any statewide candidates (except the Libertarians are ballot-qualified for president, so the problem didn’t affect Jo Jorgensen). But both parties had legislative candidates.

The law says that petitions for the nominees of unqualified parties may have partisan labels, and that the labels must be printed on the ballot. But the Elections Division had initially decided to ignore the law, and to simply print "petition candidate."

Seventh Circuit Judge Amy Barrett has had one ballot access case, and she ruled badly. The issue was whether Illinois was violating the Constitution when it required more signatures for a candidate for county office to get on the primary ballot, than for a statewide candidate to get on the primary ballot. Acevedo v Cook County Electoral Board (2019). The law required a Democrat running for Sheriff to get 8,236 signatures, whereas all Democrats for statewide office needed 5,000.

The Democratic primary ballot for Sheriff of Cook County is never crowded. The number of candidates in that primary for Sheriff has been: 2002 one; 2006 three; 2010 two; 2014 four; 2018 one, for an average of 2.2 candidates. Twice the U.S. Supreme Court had ruled that Illinois can’t require more signatures for a county or city office than for a statewide office, but Barrett did not apply those precedents.

VOTER REGISTRATION TOTALS

STATE

Dem.

Rep.

Indp, misc

Lib’t.

Green

Consti.

Wk Fam

Reform

other

Alaska

80,017

144,802

340,796

6,950

1,539

615

?

19,755

Arizona

1,293,074

1,389,960

1,268,739

32,965

4,476

?

– –

Arkansas

91,283

114,628

1,612,070

618

83

?

– –

Calif.

9,109,939

4,842,603

5,255,294

184,838

81,305

218

?

726,928

Colorado

1,097,559

997,785

1,489,012

38,913

8,292

10,806

?

4,813

Conn.

838,292

471,157

917,277

3,270

1,453

11

332

10

32,156

Delaware

350,943

204,276

167,856

1,880

719

276

325

45

8,973

Dt. Col.

386,917

28,677

82,869

1,950

3,630

?

– –

Florida

5,303,254

5,169,012

3,753,286

39,538

7,335

2,492

?

1,474

165,478

Idaho

137,730

515,310

308,307

9,714

?

3,480

?

– –

Iowa

690,251

703,336

646,211

13,013

3,274

0

– –

Kansas

509,048

865,387

524,195

20,353

0

Kentucky

1,672,380

1,568,690

307,577

13,511

1,931

899

?

138

300

Louis’na

1,248,613

1,004,537

708,366

23,406

4,545

267

0

3,143

15,048

Maine

386,786

295,122

339,782

?

41,693

?

– –

Maryland

2,258,099

1,016,031

810,182

14,059

5,613

?

2,472

Mass.

1,499,898

459,913

2,660,796

18,803

3,666

307

64

127

22,725

Nebraska

366,099

599,087

269,709

17,194

?

– –

Nevada

654,724

566,265

425,502

17,067

1,578

77,341

?

– –

N. Hamp.

316,926

297,972

386,548

?

– –

N. Jersey

2,498,976

1,425,319

2,362,169

18,199

11,496

17,138

?

2,009

30,880

N. M.

603,039

413,605

283,167

12,107

7,441

913

?

8,603

N. York

5,900,507

2,611,227

2,520,834

13,567

24,504

?

40,335

2,058

588,104

No. Car.

2,599,432

2,200,218

2,434,684

45,817

3,522

4,559

?

– –

Okla.

739,466

1,100,032

353,269

13,441

?

– –

Oregon

1,043,175

750,718

955,483

21,161

7,993

3,657

8,703

?

133,402

Penn.

4,168,900

3,451,514

1,227,454

40,324

9,547

?

– –

Rhode Is.

351,296

111,230

332,686

?

– –

So. Dak.

157,172

273,636

136,447

2,194

?

356

?

– –

Utah

239,514

833,232

467,061

17,528

2,235

5,655

?

55,336

W. Va.

469,150

446,733

324,767

8,414

2,352

174

?

– –

Wyo.

43,625

169,468

24,305

1,467

0

392

?

– –

TOTAL

47,106,084

35,041,482

33,696,700

652,261

240,222

129,556

49,758

9,004

1,814,973

Percent

39.67%

29.51%

28.38%

.55%

.20%

.11%

.04%

.01%

1.53%

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 page one for more about this chart.

2020 PARTY REVENUE FROM STATE INCOME TAX "CHECK-OFF"

State

Demo.

Rep.

Lib’t.

Constitn

Green

Wk Fam

Indp. Prty

other

Alabama

8,454

11,932

– –

Arizona

22,316

11,961

660

– –

1,610

– –

Kentucky

61,802

95,828

– –

Minn.

40,360

15,872

782

– –

1,008

– –

1,764

1,738

N. Mex.

6,584

3,844

366

94

278

– –

148

Oregon

16,907

6,288

522

183

645

993

1,266

489

Rhode I.

9,965

3,530

– –

512

Utah

46,240

53,024

5,166

2,030

1,694

– –

6,328

Virginia

48,940

13,399

– –

TOTAL

261,586

215,678

7,496

2,307

5,235

993

2,356

9,215

Entries in "Other" column are: Minn., Grassroots $636 & Legalize Marijuana Now $1,102; N.M., Better for America $146 and Indp. American $2; Ore., Prog; Rhode Island, Moderate; Utah, United Utah $2,548 & Independent American $3,780.

TOTALS FOR THE ENTIRE NATION THROUGH THE PERIOD 2000-2020

YEAR

Democrat

Republican

Green

Lib’t.

Reform/AE

Constitution

Other

2000

941,463

822,671

31,864

13,024

5,054

19,209

71,824

2001

680,608

611,065

12,184

8,173

755

2,295

46,232

2002

928,716

892,438

84,120

7,289

749

2,886

97,559

2003

1,181,312

1,126,585

20,665

7,859

46

51

9,975

2004

828,136

786,190

16,309

8,446

324

1,409

8,822

2005

750,461

714,238

18,100

5,546

34

2,442

25,887

2006

915,945

806,193

50,434

7,282

– –

5,847

45,355

2007

1,050,593

850,580

15,716

5,839

– –

3,503

15,627

2008

1,520,746

1,127,478

8,324

5,034

– –

5,938

5,219

2009

978,325

718,165

7,642

45,889

– –

4,520

4,970

2010

830,562

616,027

5,257

11,115

– –

3,617

5,630

2011

850,490

603,022

6,560

53,133

– –

4,367

11,766

2012

1,883,507

1,245,403

7,862

101,253

– –

2,458

8,733

2013

740,897

545,527

4,041

22,438

11,516

2,816

21,430

2014

369,153

324,042

1,836

7,418

817

3,041

3,175

2015

280,223

246,396

1,777

7,263

174

2,455

12,078

2016

275,908

231,102

3,517

6,636

561

2,428

6,229

2017

261,402

235,678

2,502

7,426

– –

2,333

8,781

2018

251.366

201,949

4,783

8,316

– –

2,255

13,152

2019

239,727

215,182

3,330

7,467

– –

2,283

8,791

2020

261,568

215,678

5,235

7,496

– –

2,307

12,564

LEGISLATIVE CANDIDATES ON THE BALLOT

The chart shows how many legislative nominees each party has. Republicans have them in 82.2% of the seats, their highest since 2010, when they had 83.9%. Democrats have nominees in 83.0% of seats. Although they had a higher percentage in 2018 (87.8%), their 2020 showing is still the second-highest percentage since 2008.

The number of independent legislative candidates declined from 3.9% of the seats in 2018, to 3.6% in 2020. Libertarians declined from 5.9% of the seats in 2018 to 4.5% in 2020. Greens declined from 1.2% of the seats in 2018 to .9% in 2020. The health crisis injured minor party and independent candidates because they are more dependent on petitioning.

STATE

# seats

Rep.

Dem.

Lib’t.

indp.

Green

Consti

other(1)

other(2)

oth(3)

Alaska

51

41

37

2

19

0

4

3

1

0

Ariz

90

75

70

0

1

0

Ark

117

102

63

4

7

0

Cal

100

79

95

3

2

1

0

1

0

Colo

83

75

82

31

0

2

0

Ct

187

161

179

1

10

4

0

13

1

0

Del

52

34

43

3

0

Fla

140

114

139

2

14

0

Ga

236

167

183

0

1

0

Hi

65

35

65

2

0

2

0

13

1

0

Id

105

101

57

4

2

0

6

0

Ill

140

79

126

9

4

6

1

0

Ind

125

104

105

5

1

0

Iowa

125

5

4

0

Kan

165

153

120

5

1

0

Ky

119

98

89

11

4

0

Maine

186

159

170

0

13

4

0

Mass

200

59

183

0

14

1

0

Mich

110

108

109

9

1

10

2

5

1

0

Minn.

201

198

197

0

1

0

11

7

4

Mo

180

147

120

8

1

3

1

0

Mont

125

116

89

13

0

Nev

52

42

44

5

3

0

5

0

NH

424

369

418

2

1

0

NM

112

101

91

17

3

1

0

NY

213

153

198

14

6

8

0

14

4

3

NoC

170

161

168

23

1

0

NoD

70

57

0

1

0

Ohio

115

107

93

1

0

Okla

125

119

57

2

1

0

Ore

76

66

76

11

0

3

0

1

0

Pa

228

183

186

6

5

2

0

R I

113

42

107

1

19

0

So C

170

139

110

6

0

1

4

1

So D

105

101

62

7

4

0

Tenn

115

95

69

0

13

0

Tex

166

135

139

35

0

3

0

Utah

90

88

63

2

0

6

19

2

0

Vt

180

125

144

3

42

0

18

0

Wash

123

103

110

3

4

0

1

0

W Va

117

107

99

5

1

4

0

Wis

115

105

100

0

6

0

Wyo

75

70

26

6

3

0

TOTAL

5856

4811

4863

266

213

55

26

105

19

8

Parties in the "other(1)" column: Ak, Alaskan Independence; Cal, American Independent; Co, Unity; Ct, Independent Pty; Hi, Aloha Aina; Mi, Working Class; Mn, Legal Marijuana Now; NY, Conservative; Or, Working Families; SC, Alliance; Ut, United Utah; Vt, Progressive; Wa, Alliance.

Parties in the "other(2)" column are: Ak, Veterans; Ct, Socialist Resurgence; Hi, American Shopping; Mi, Natural Law; Mn, Grassroots-Legalize Cannabis; NY, Working Families; SC, Independence; Ut, Independent American; Wa, Seattle Peoples.

Parties in the "other(3)" column: Mn, 3 Veterans, and 1 Alliance; NY, SAM; SC, Labor; Wa, Progressive.

PRESIDENTIAL WRITE-IN STATUS

Here is a list of the presidential candidates who are on the ballot in at least two states, but who are not on the ballot in all states, and who have filed for write-in status in at least one state. It shows in which states they have filed for write-in status. However, this list is not complete, because the deadline has not passed in all states.

Howie Hawkins: Ak, Az, Ga, Id, In, Ky, Wi.

Gloria La Riva: Az, Ct, De, Ga, Id, Ky, Md, Mo, NY, Oh, Tx, WV, Ws.

Rocky De La Fuente: Md, NY, WV.

Don Blankenship: Il, NY, WV.

Brock Pierce: De, Md, WV.

Kanye West: Ak, De, Md, NY, Wi.

Brian Carroll: Ak, Ct, De, Fl, Ga, Id, In, Ky, Md, Ma, NY, Oh, Tx, Ut.

Phil Collins: NY.

Dario Hunter: Ak, NY, Oh.

Jade Simmons: Az, De, Fl, Ga, Id, Il, Md, Ma, Mt, NY, NC, Oh, Ut, WV, Wi.

GEORGIA SPECIAL U.S. HOUSE ELECTION

Georgia held a special election on September 29 to fill the vacant Fifth District seat. In Georgia special elections, there are no party nominees; any individual may run by paying a filing fee. Party labels are permitted. In this election, the candidates were five Democrats, one Libertarian, and one independent. No one got a majority so there will be a run-off between Democrats Kwanza Hall and Robert Franklin on December 1. The five Democrats together got 97.16% of the vote; the Libertarian received 2.04%; the independent received .81%.

The last B.A.N. said that on August 30, the Movement for a Peoples Party held a founding convention on-line. Actually that meeting was a planning meeting for the upcoming founding convention. The convention itself will be early in 2021.

Free & Equal and Open the Debates sponsored an alternative presidential debate on Thursday, October 8, in Denver. The candidates were Howie Hawkins, Gloria La Riva, Don Blankenship, Brock Pierce, and Brian Carroll. The same five candidates will debate again on October 24 in Cheyenne, Wyoming.

The Commission on Presidential Debates had expected to hold three presidential debates between President Trump and Joe Biden, but the second debate, set for October 15, was never held.

FLORIDA ACLU OPPOSES TOP-TWO INITIATIVE

In late September, the American Civil Liberties Union of Florida League declared its opposition to the top-two initiative, which is on the ballot as Amendment Three. The ACLU statement did not mention the impact it would have on minor parties. Instead it cited evidence that it would be more difficult for racial and ethnic minorities to be elected.

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