Minor party and/or independent candidates for Congress will appear on the ballot in 44 states this November. The states in which there will be no such candidates are Alabama, Georgia, Hawaii, Nebraska, South Dakota, and Washington.

In Hawaii, Nebraska, and South Dakota, there are ballot-qualified minor parties who could have run someone without a great deal of effort, but no one chose to run.

In Washington, the top-two primary system produced only Democrats and Republicans on the ballot for Congress. In Alabama and Georgia, the petition requirements are so severe that no one outside the two major parties ran.

This year, Alabama and Oklahoma are the only two states in which no party labels will appear on any ballot in November for any partisan office, except “Republican” and “Democratic.” Lawsuits against the ballot access laws of both states are pending and may get decisions in 2013. In both instances, the U.S. District Court refused injunctive relief, but declaratory relief is yet to be decided.

In Oklahoma the plaintiffs are the Green and Libertarian Parties. In Alabama the plaintiffs are the Constitution, Green, and Libertarian Parties. Both states have petition deadlines for newly-qualifying parties in March. There are no precedents that uphold such an early deadline for newly-qualifying parties.

The Vermont Progressive Party is entitled to its own primary. At the August 28 primary, the party’s state chair, Martha Abbott, filed to run for Governor. Hers was the only name on the Progressive Party primary ballot. She let it be known that if she were nominated, she would withdraw from the general election, because the Progressive Party leadership wanted to have no Progressive nominee on the ballot for Governor, so as to assist the Democratic incumbent who is running for re-election.

However, another Progressive Party candidate entered the primary race for Governor. She is Annette Smith, an environmentalist, and she let it be known that if she won the primary, she would not withdraw and would campaign in November. At the primary, the number of write-in votes for Governor in the Progressive Party primary exceeded the number of votes cast for the ballot-listed Abbott. There were 371 votes for Abbott and 382 write-ins. However, after an initial count of the write-ins, followed by a recount, followed by a lawsuit, Abbott was determined to be the winner, on September 18. See this story. She has already withdrawn from the race.

Here is a longer story about the Progressive Party, written before the primary results were known.

The Progressive Party will have three statewide nominees: Cassandra Gekas for Lieutenant Governor, Don Schramm for Treasurer, and Ed Stanak for Attorney General. Gekas has been cross-endorsed by the Democratic Party.

In other Vermont news, it seems likely that Liberty Union will regain its “major party” status, which will entitle it to its own primary. It needs 5% in any statewide race. In the Secretary of State’s race, the only nominees are Liberty Union nominee Mary Alice Herbert, and incumbent James C. Condos, who has the nominations of the Democratic, Republican, Working Families, and Progressive Parties.

For at least three years, the Associated Press-Roper-GfK poll has been periodically asking respondents, “Do you consider yourself a Democrat, a Republican, an independent, or none of these?” The September 2012 poll, taken between September 13-17, shows these results on page 34:

Democrat 31%
Independent 29%
Republican 22%
None of these 17%
don’t know 1%
refused, less than 1%

During the last three years, the range of Democrats has varied from a high of 35% to a low of 28%. The range of Republicans have been 32% to 18%. The range of independents has varied from 33% to 24%. The range of “none of these” is 7% to 20%.

On September 21, the Sixth Circuit refused to rehear Gelineau v Ruth Johnson, the case to get Gary Johnson of Austin, Texas, on the Michigan ballot as the Libertarian presidential candidate. The state didn’t even explain, in any of its briefs, why James P. Gray, the Libertarian nominee for vice-president, should not be on the November ballot; he isn’t a “sore loser”. The Court seems to base its unwillingness to actually hear the case on the point that the case should have been filed sooner. Here is the two-page order.

The issue will be aired in the two Michigan Libertarian cases after the election is over. The very fact that the “sore loser” law doesn’t explain how to handle vice-presidential candidates, and presidential elector candidates, is further evidence that the law was never intended to apply to presidential primaries. For now, the only solace that Michigan voters who want to vote for Johnson have is that write-ins will be counted.

The largest number of write-ins for a presidential candidate in general election history was 58,412 (the Eugene McCarthy total in California in 1976). Within Michigan, the largest number of write-ins ever received by a presidential candidate in the general election was Ralph Nader in 1996; he received 2,322. Elections officials must perform extra work to handle write-in votes, so Ruth Johnson’s illogical and cruel decision to be the first official in U.S. history to keep a presidential candidate off the ballot on the basis that he or she had run in a presidential primary will cause extra expense and work for local election officials.

Every Gary Johnson voter in Michigan should check after the election to see that at least one Johnson write-in in that voter’s precinct was canvassed, and if a write-in voter finds a “zero” in the official record, that voter should participate in a lawsuit along with other such voters. The Michigan Libertarian Party can probably coordinate such an effort if it wishes.

The pending lawsuit filed by the Peace & Freedom Party, the Libertarian Party, and the Green Party of Alameda County had been set for a hearing in Superior Court in Alameda County for September 25. But it has been postponed until October 9, Tuesday. This case is Rubin v Bowen. It was filed on November 21, 2011, and still doesn’t have an opinion from the Superior Court.

This case should not be confused with the case against two particular aspects of top-two that was originally filed in San Francisco and is called Field v Bowen.

On September 21, Gary Johnson, his running mate James Gray, and the Johnson-Gray Campaign filed a lawsuit in U.S. District Court in the central district of California against the Commission on Presidential Debates, the Democratic National Committee, and the Republican National Committee. The lawsuit alleges that the Commission on Presidential Debates and the two major parties are restraining competition. To answer the complaint that anti-trust law only relates to business, the complaint points out that the salary of the president is $400,000, and that Johnson is seeking to obtain the job of President, so economics is involved. The case is Johnson v Commission on Presidential Debates, cv-12-01600. Here is the complaint.

The case is assigned to Judge Philip S. Gutierrez, a Bush Jr. appointee. He has only had one previous case involving a minor party. He heard Libertarian Party of Los Angeles County v Bowen, a case against California’s restriction on out-of-district petitioners. In that case, he ruled that because the Secretary of State says she doesn’t enforce the law, therefore the plaintiffs lack standing to sue to overturn it. The Ninth Circuit took a somewhat different view, sending the case to arbirtration and signaling that if the arbitration doesn’t result in significant changes in state policy, the law will be held unconstitutional.

The lawsuit says that any presidential candidate on the ballot in enough states to theoretically win the presidency must be included in the debates. The venue is proper because James Gray lives in the central district of California. The attorney for the case is Paul Jensen. The lawsuit was filed a few hours after the Commission on Presidential Debates formally said only President Obama and Mitt Romney may participate in the first two debates. Here is the Commission’s announcement. Thanks to Independent Political Report for the news.

As of 6 p.m. eastern time, the Connecticut Supreme Court still hasn’t ruled on which party should be listed first on the ballot. This is somewhat surprising, because it is not likely that the decision will appear on the weekend, although it is always possible.

There are other states in which the ballot isn’t final yet either. For example, in Arkansas, the State Supreme Court still hasn’t ruled on whether the medical marijuana initiative should be on the ballot. But Arkansas has already printed the ballots with the initiative listed. If the Court removes the initiative from the ballot, the state simply won’t count the votes. But Connecticut is not free to handle its unresolved matter that way. No Connecticut ballots, not even overseas absentee ballots, can be printed yet. Such ballots must be mailed no later than Saturday, September 22, according to federal law.

On September 21, the California Secretary of State released a new voter registration tally. See the full report here. The tally is as of September 7.

Compared to the last tally (the May 21, 2012 tally), every qualified party has a slightly smaller share of the registration now than it did in May, except for the Libertarian Party. The percentage of voters registered “no party preference” also declined slightly, but the number registered in other, unspecified parties grew.

The percentages for each party, for May 2012, and then September 2012, are:
Democratic 43.39%, 43.33%
Republican 30.24%, 30.11%
American Independent 2.53%, 2.52%
Green .646%, .634%
Libertarian .546%, .548%
Peace & Freedom .349%, .343%
Americans Elect .018%, .017%
all non-qualified parties .98%, 1.22%
No Party Preference 21.31%, 21.28%

Registration data is available for the unqualified parties that have told the Secretary of State that they are attempting to qualify. The Reform Party now has 20,362 registrants. The last tally available for it was in January 2012, when it had 20,722. There is no May tally for the Reform Party because at the time it hadn’t asked for a tally.

The Constitution Party now has 252 registrants, up from 121 in January 2012, and 207 in May 2012.

The Justice Party now has 237 registrants, up from 183 in January 2012. There is no May tally for the Justice Party.

It is somewhat surprising that the Americans Elect registration declined. It went from 3,030 registrants in May, to 2,998 in September. One would have expected it to grow because it wasn’t printed as a choice on voter registration forms in May, but it is now, although some counties are probably still using old forms that don’t include it.

On September 21, a U.S. District Court in Colorado dismissed the case Citizen Center v Gessler, 1:12-cv-370. The judge ruled that nothing in the U.S. Constitution requires a secret ballot, so even if the presence of the bar codes does make it possible for someone to learn how someone else voted, that is not a violation of the U.S. Constitution. See this story.

On September 14, Congressman John Sarbanes (D-Md.) introduced HR 6426, which provides public funding for candidates for Congress. Candidates for U.S. House would qualify by raising contributions privately from at least 2,000 individuals, at least half of whom must live in the district. The total would need to be at least $50,000 in private contributions. Here is the text of the bill.

On September 21, a Reason-Rupe Poll for the presidential race was released. When respondents are asked to choose between President Obama and Mitt Romney, the results are: Obama 48%, Romney 43%, 2% volunteered someone else, 1% said they would not vote, and 6% didn’t know or refused to answer. When the respondents are asked to choose among Obama, Romney, and Gary Johnson, the results are: Obama 49%, Romney 40%, Johnson 6%, someone else 1%, would not vote under 1%, don’t know or refused 4%.

It is unfortunate that pollsters don’t list more candidates. The recent Gallup Poll, listing five candidates, should be a model.

The Reason-Rupe Poll also shows that 65% of respondents have never heard of Gary Johnson. Thanks to PoliticalWire for the link.

According to this story, Virginia’s Attorney General, Ken Cuccinelli, says that Virgil Goode, Constitution Party presidential nominee, is properly on the ballot. He has finished investigating the Goode petition.

On September 19, the North Dakota Supreme Court refused to put this year’s medical marijuana initiative on the ballot. The Court said it would explain its reasoning later. The case is Zaiser v Jaeger, 20120346.

This year, North Dakota statewide initiatives needed 13,452 valid signatures. Proponents submitted over 20,000 signatures, but the Secretary of State determined that many of the signatures were forged, so he invalidated the measure without determining exactly how many signatures are valid and how many are forged. Proponents of the initiative asked the Court to declare that an initiative can’t be invalidated without a determination of how many signatures are valid, but they did not prevail. When the Court issues its opinion, it is possible it will not decide the issue and will perhaps merely say that the lawsuit had been filed too late. Some ballots had already been printed.

Maine, Montana, North Dakota, South Dakota, Alaska, and California are the only states that still ban out-of-state circulators for statewide initiatives, and the Alaska, California and Montana restrictions cannot be enforced because the Ninth Circuit already ruled that out-of-state circulators cannot be banned. The District of Columbia also bans them. Probably if North Dakota did not ban out-of-state circulators, there would have been no petition fraud. Proponents of the North Dakota medical marijuana initiative hired eight members of the University of North Dakota football team, and they have been charged with forgery. If proponents had been able to hire out-of-state circulators, chances are high they would have hired honest, talented professionals and the initiative would now be on the ballot.

On September 17, Maryland Democrats formally endorsed John J. LaFerla for U.S. House, First District. On September 20, he filed as a declared write-in. The Democratic nominee whose name is printed on the ballot, Wendy Rosen, tried to withdraw from the race after it was revealed that she had voted in both Florida and Maryland during 2006 and also in the 2008 primaries. However, she was too late to remove her name from the ballot.

Therefore, the ballot will show the names of the Republican nominee (incumbent Andy Harris), the Democratic nominee who is no longer campaigning, and the Libertarian nominee, Wayne Boda; and there will be a strong write-in candidate. LaFerla had lost the Democratic primary this year for the First District seat by a vote of 10,907 to Rosen and 10,850 for LaFerla.

This incident shows that Maryland is wise not to ban “sore losers” from at least being write-in candidates in the general election. Thanks to Doug McNiel for the news. If this had happened in California, with the same timing, Democratic voters would have been effectively disenfranchised, since California’s top-two system eliminated write-in space on the November ballot for Congress and partisan state office.

The South Carolina ballot will contain only two candidates for State House, 26th district. They are Raye Felder, who is on the ballot as an independent, and Jeremy C. Walters, Libertarian. Felder is actually a Republican, but she was eliminated from the Republican primary ballot because she didn’t file copies of her campaign finance papers both electronically and on paper by the March deadline. Over 100 candidates for state and local office in South Carolina made the same legal error.

In South Carolina, independent candidates are on the ballot as “by petition” instead of “independent.” Here is Walters’ campaign web page; here is Felder’s campaign web page. The district is new and is centered on Fort Mill, which is a suburb of Charlotte, North Carolina. Walters got some publicity last month when he appeared at a joint campaign appearance with Libertarian presidential nominee Gary Johnson.

The old district 26 was in a different part of the state, so the incumbent, Eric Bikas, a Republican, didn’t run for re-election in any district. Bikas is age 26 and several months ago was told to leave the legislature because he appeared on the House floor without a coat and tie. See this story.

The Arkansas Supreme Court still hasn’t released its opinion on whether the statewide medical marijuana initiative should remain on the ballot. See this story from six days ago, which says that the Court said it would rule on the briefs, without benefit of any oral argument.

Other states that still can’t finalize their ballots include Colorado, Connecticut, Missouri, and Pennsylvania. In Colorado, a U.S. District Court will hear arguments on September 21 on whether bar codes should be on ballots. The Connecticut Supreme Court still hasn’t decided which party should be listed first on the ballot.

In April 2012, Nicholas Fontana was appointed to the Arizona House of Representatives to represent the 29th district. He is the first independent state legislator since Arizona because a state in 1912 (except that his predecessor in that district had switched to being an independent but then had resigned a few days later).

Fontana is not running for re-election. The only candidates who will be on the ballot in the 29th district are two Democrats. Each Arizona state house district elects two members.

As has been reported already, this year the Michigan Republican Party intervened in court to keep Gary Johnson off the ballot because his name appeared on the 2012 Republican presidential primary ballot. He had tried to withdraw but his withdrawal form was faxed in at 4:03 p.m. and the deadline was 4 p.m.

Back in 1980, the Republican Party took a different position. This has only come to light on September 20, when the briefs from a 1980 ballot access case in the Michigan Supreme Court were retrieved from storage. That case is Michigan Republican State Central Committee v Austin, no. 51492 in the State Court of Appeals, and 65178 in the Michigan Supreme Court.

In 1980, the deadline for someone to withdraw from the Republican presidential primary was March 21 at 4 p.m. Anderson, who did not want to be on the Republican presidential primary ballot, did not withdraw until April 24, in a letter that the Secretary of State did not receive until April 28. In 1980, the Michigan Republican Party wanted Anderson to be permitted to withdraw from the primary ballot. The Republican Party even filed a lawsuit to force Michigan to remove Anderson from the primary ballot. The party’s brief acknowledges that Anderson was late to withdraw, but the brief says he should be allowed to withdraw anyway, because “If one accepts the interpretation of the Attorney General then one is forced to conclude that the (withdrawal deadline) statute will not pass constitutional muster. In the first place, the deadline for filing is the same as the deadline for withdrawal so that, in effect, there is actually no time period for withdrawal. Second, the statute requires that the ballot be permanently fixed approximately two months before the election. In a volatile Presidential race, such a time constraint is unreasonable.”

Thus, the Republican Party in 1980 argued that Anderson’s withdrawal should be permitted even though it was not received until 38 days past the withdrawal deadline, yet in 2012 it argued that Johnson’s withdrawal request should be denied because it was three minutes too late. The 2012 withdrawal deadline was December 9, 2011, which is 103 days earlier than the 1980 withdrawal deadline.

U.S. District Court Judge Richard W. Story, a Clinton appointee, ruled against the Constitution Party and the Green Party in their presidential ballot access case on July 17, before the state had even answered the complaint. He relied on precedents that do not involve presidential elections, and seemed not to notice that the case only concerns presidential ballot access.

Plaintiffs asked for reconsideration on July 24. Almost two months has passed and Judge Story has taken no action on the request for reconsideration. The case is Green Party of Georgia v State, northern district, 1:12cv-1822.