Category Archives: ballot access

Court concludes California candidate tax disclosure law applies only to gubernatorial primaries, not recalls

California recently enacted a law to compel presidential candidates and gubernatorial candidates to disclose their tax returns as a condition for appearing on the primary ballot. The presidential rule was targeted at Donald Trump; the gubernatorial rule added at the behest of Gavin Newsom, who was voluntarily disclosing tax returns anyway. While Jerry Brown had vetoed a similar bill, Newsom signed the bill. A federal district court and the California Supreme Court independently enjoined enforcement of the presidential primary component (which I discuss, among other things, in Weaponizing the Ballot, recently published in the Florida State University Law Review; enjoined, despite the serial assurances of its constitutionality mentioned in Newsom’s signing statement).

On the gubernatorial side, Division 8 of the Elections Code includes rules for the primary. Section 8902(a) provides, “Notwithstanding any other law, the name of a candidate for Governor shall not be printed on a direct primary election ballot, unless the candidate, at least 98 days before the direct primary election, files with the Secretary of State copies of every income tax return the candidate filed with the Internal Revenue Service in the five most recent taxable years, in accordance with the procedure set forth in Section 8903.”

Newsom now faces a gubernatorial recall election. A number of candidates filed to challenge him.

One might think that this tax disclosure provision would not apply to a recall election. After all, the Code uses the word “primary,” not “recall.” Ballot access for a recall election is governed by an entirely separate part of the Elections Code, Division 11. Professor Jessica Levinson at Loyola Law School noted that it’s “going to be hard to overcome a plain language problem.”

One might think. But it didn’t dissuade California’s Secretary of State from summarizing that “gubernatorial candidates,” not primary candidates, are required to disclose tax returns. And she enforced the rule, dutifully disclosing the sordid details of dozens of candidates, which you’re welcome to peruse here, and excluding any candidate who failed to comply.

One prospective candidate, Larry Elder, failed to comply with the law, apparently inadvertently failing to redact some information from his tax returns. He sued, and a state court found he should appear on the ballot. As the court said, “I don’t find that Mr. Elder was required to file tax returns at all.” By its plain text, the statute applies to primaries, not recalls.

Whether other candidates were improperly excluded from the ballot for failure to file tax returns remains to be seen. Did it “scare off” any candidates? Time will tell if the California recall ballot gets much longer in the days ahead as the recall election rapidly approaches and ballots need to be printed.

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Tournament Elections with Round-Robin Primaries

I’ve posted a draft of this paper on SSRN. Here’s the abstract:

Round-robin voting uses ranked-choice ballots but calculates which candidates are most preferred by a majority of voters differently from instant-runoff voting. Like a round-robin sports competition, round-robin voting determines how each candidate fares against every other candidate one-on-one, tallying the number of wins and losses for each candidate in these one-on-one matchups. If necessary to break a tie in these win-loss records, round-robin voting looks to the total number of votes cast for and against each candidate in all of the one-on-one matchups—just as round-robin sports tournaments look to an equivalent total point differential statistic to break ties. When used in a primary election as the method to identify the top two candidates deserving to compete head-to-head as finalists in the general election, comparable to the use of round-robin competition as the preliminary stage of a sports tournament, round-robin voting is the electoral system best able to implement the democratic idea of majority rule.

I was delighted to have the opportunity to present an earlier draft at the University of Wisconsin Law School’s “Public Law in the States Conference” on June 23, and I’m looking forward to working with the Wisconsin Law Review on preparing the paper for publication. This draft will be revised before submission to the law review’s editors at the end of August, and therefore I very much welcome any comments that readers might email me before then.

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“New York GOP groups sue over Working Families petitions”

Times-Union:

County Republican organizations around the state have filed lawsuits trying to remove Democrats from the state Working Families Party line ahead of the June primaries.

The move comes as local Republicans in at least three counties have also tried to co-opt the WFP line – a move they made after other minor parties they relied on to boost their voting totals in elections were booted from the ballot under new state election thresholds.

Lawsuits in state Supreme Court have been filed in Albany, OnondagaMonroe, Niagara, Rensselaer, Saratoga, and Schenectady counties, according to court records and media reports. The lawsuits allege that the Working Families Party’s executive committee did not properly authenticate petitions from Democrats seeking to run on the WFP line.

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“Judge rules against Georgia’s limits on third-party House candidates”

AJC:

Georgia’s steep requirements for Libertarian and other third-party candidates to run for Congress are “overbroad,” shutting them out of the political process, a federal judge ruled Monday.

BAN:

On March 29, U.S. District Court Judge Leigh Martin May, an Obama appointee, issued an opinion in Cowen v Raffensperger, n.d., 1:17cv-4660. It invalidates the 5% petition for minor party and independent candidates for U.S. House, combined with the filing fee, which is 3% of the office’s annual salary. The opinion suggests that because Georgia has a 1% petition for non-presidential statewide petitions, the state would be hard-pressed to justify requiring a petition greater than 1%.

All of these petition percentages are based on the number of registered voters.

The opinion asks both sides to submit further briefs by the next three weeks, to discuss what the interim remedy should be. The legislature adjourns for the year on March 31, so obviously the legislature can’t write a new law this year.

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Must-Read Story Out of Florida: “Evidence suggests several state Senate candidates were plants funded by dark money”

Local10 News:

Why would candidates for Florida Senate seats do no campaigning, no fundraising, have no issue platforms, nor make any effort to get votes?

Local 10 News has found evidence to suggest three such candidates in three Florida Senate district races, two of them in Miami Dade County, were shill candidates whose presence in the races were meant to syphon votes from Democratic candidates.

Comparisons of the no-party candidates’ public campaign records show similarities and connections that suggest they are all linked by funding from the same dark money donors, and part of an elaborate scheme to upset voting patterns.

In one of those races, District 37, a recount is underway because the spread between the Democratic and Republican candidates is only 31 votes. The third party candidate received more than 6300 votes.

That third party candidate is Alexis Rodriguez, who has the same last name as the Democratic incumbent senator Jose Javier Rodriguez. The Republican challenger is Ileana Garcia.

Alexis Rodriguez falsified his address on his campaign filing form last June. The couple who now live at the Palmetto Bay address say they have been repeatedly harassed since then by people looking for Rodriguez, who hadn’t lived there in five years.

Local 10 visited Rodriguez’s place of business Tuesday, where Rodriguez lied about his identity. Pretending to be a business partner, Rodriguez shed little light on his sudden candidacy in the District 37 race and lack of fundraising or campaigning.

Local 10 began investigating Rodriguez’s candidacy because of a hunch by Executive Producer Natalie Morera de Varona last month. She was collecting candidates’ headshots for election broadcast graphics and was curious why a candidate was nowhere to be found, not returning phone calls.

A search of campaign documents filed by Rodriguez led to a money trail and campaign finance connections with other no-party third candidates in Florida Senate District 9 in Central Florida, and District 39 in Miami-Dade.

The District 39 candidate is 81-year-old Celso Alfonso, a retiree who named the woman he calls his wife as campaign treasurer. She owns a day spa, and the home where we found Alfonso Tuesday afternoon.

He, too, lied about his identity at first, and finally admitted to being the candidate.

Alfonso claimed he had a lifelong dream to be in public service. He said he filed on his own, that no one assisted him.

A comparison of candidates Alfonso and Rodriguez show unusual similarities.

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“An accidental candidate looms as wild card in Katko-Balter race for Congress”

Syracuse.com:

Steve Williams agreed to be only a temporary placeholder on the Working Families Party line until Democrats chose a candidate – ultimately Balter – in the June 23 primary election.

But now he’s stuck on the ballot, even though he’s backing Balter. His awkward position is the result of miscalculations by the Working Families Party and a lawsuit by Republicans, who want to block Balter from gaining a third-party line in the election.

Williams’ appearance on the ballot takes on added importance because a Siena College | Syracuse.com poll shows Balter (45%) and Katko (42%) locked in a statistical dead heat. The race is within the poll’s margin of error of plus or minus 5.1 percentage points.

If the election is anything like 2010, when Ann Marie Buerkle defeated Rep. Dan Maffei by 648 votes in the Syracuse-based congressional district, Williams could be a big factor in the final outcome.

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“How Republicans Are Trying to Use the Green Party to Their Advantage”

NYT:

With Mr. Trump trailing Joseph R. Biden Jr. in most national and swing-state polls, Republicans are again trying to help third parties that may appeal to Democratic voters and siphon off votes from Mr. Biden. This is taking place alongside a broader pattern of disinformation and skepticism by the president and his allies that has sown confusion and undermined confidence in the election.

Supporters of the president have also been trying to advance the candidacy of Kanye West, the billionaire hip-hop artist, confident that he can cut into Mr. Biden’s vote total. Democrats have portrayed the effort as a “dirty trick” and exploitative of Mr. West, who has bipolar disorder.

Republican efforts to aid the Green Party are not new. In 2016, a billionaire backer of President Trump, Bernie Marcus, the co-founder of Home Depot, provided support to Jill Stein, the Green candidate, according to people with knowledge of the strategy, who said the effort was done with the knowledge of some officials at the Trump campaign and its chairman at the time, Paul Manafort. (Mr. Manafort was subsequently convicted of eight counts in an unrelated financial fraud trial.)

It was not clear if Mr. Marcus’s support, which has not been previously reported, included bolstering the party’s effort to get on the ballot or funding a social media campaign, or if it went toward some other purpose.

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Breaking: In 4-3 Vote NOT Along Party Lines, Wisconsin Supreme Court Keeps Green Party Off the Ballot (Link to Opinion), Which Should Allow Ballots to Be Printed (But Kanye West Appeal Perhaps Coming and Delaying Things Further?)

You can find the opinions and dissent here. Conservative Justice Bruce Hagedorn joined the court’s liberals to form a majority.

One of the dissents refers to this case as “perhaps one of the most
important cases in a judicial lifetime.” Really?

This means ballots can be printed, although Kanye West is also expected to file an appeal to his exclusion from the ballot.

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“Green Party’s legal team has ties to GOP and also represents counties that don’t want party added to ballot”

Milwaukee Journal Sentinel:

The legal team trying to get the Green Party’s presidential ticket on the state’s ballot has close ties to Republicans and also represents Wisconsin’s counties —a group that doesn’t want the Green Party to prevail because it will force them to reprint ballots and miss deadlines.

The situation is causing some county officials to ask how lawyers they help fund can perform work that is not in their interest. 

“Representing one client shouldn’t have an adverse effect on representing another client,” said Milwaukee County Supervisor Joseph Czarnezki. “I think this is a conflict.”

“It would cost counties throughout the state a small fortune to reprint all these ballots, and that’s not fair to the taxpayers.”

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Are Republicans Financing the Effort to Get the Green Party Restored to the Ballot in Wisconsin?

WaPo:

Hawkins suggested in an interview that Trump supporters had helped the Green Party ticket with its legal claim before the state Supreme Court. The party’s petition was filed by attorneys from the Milwaukee-based von Briesen & Roper law firm, which has a history of representing Wisconsin Republicans.

“You get help where you can find it,” Hawkins told The Washington Post when asked whether Republicans had financed the legal action. “They have their reasons and we have ours.”

Hawkins’s campaign manager, Andrea Merida, later denied that, saying she “literally used Google” to find a law firm because others had turned her down. She said she doesn’t know the partisan affiliation of donors from Wisconsin supporting the Green Party ticket.

A von Briesen lawyer listed on the court filing, Andrew Phillips, did not respond to a request for comment. The chairman of the Republican Party of Wisconsin, Andrew Hitt, denied any involvement in the effort. A spokesman for the Republican National Committee declined to comment.

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