April 1995
10th circuit issues bad ruling
By Richard Winger
On Feb. 27, 1995, the 10th circuit ruled that Oklahoma may ban write-ins for president at the general election even though Oklahoma has the second-most difficult ballot access law for third party and independent presidential candidates of any state (only Wyoming requires a higher number of signatures as a percentage of the number of registered voters). Oklahoma is one of five states with a total ban on all write-in votes.
The decision was written by Judge David Ebel (a Reagan appointee) and signed by Judges John Moore (Reagan appointee) and Kathryn Vratil (Bush appointee).
Oklahoma requires a petition signed by 3 percent of the last presidential vote for third party or independent presidential candidates to get on the ballot.
For 1996, the 3 percent requirement equals 41,711 signatures. In order to obtain that number, a petition must contain at least 65,000 signatures to account for those that will be disqualified. At the normal rate for hiring petitioners, plus inevitable other costs, it would cost an estimated $65,000 for any group to complete this petition.
In the last five presidential elections, only two third parties -- Libertarian and New Alliance -- have ever managed to put their presidential candidates on the Oklahoma ballot. These two happen to be the only two third parties in that period that have ever placed their presidential candidate on the ballot of all states.
Even some third party candidates who qualified for primary federal matching funds -- Sonia Johnson of the Citizens Party in 1984, John Hagelin of the Natural Law Party in 1992, and Lenora Fulani in 1992 -- were unable to get on in Oklahoma.
The issue is whether the Constitution requires Oklahoma to provide write-in space on its general election ballots, for president, given that it has such restrictive ballot access laws for that office. (For other offices, Oklahoma has extremely easy ballot access laws for independent candidates.)
Although the U.S. Supreme Court upheld Hawaii's ban on write-ins in 1992 in Burdick v. Takushi, that was in the context of a plaintiff-voter who wanted to write in a candidate for the legislature in the primary, and anyone could have been on that ballot with 15 signatures. Since ballot access was so easy, the Supreme Court thought the plaintiff's rights were only slightly burdened.
The decision says that Oklahoma access laws are no more difficult than Hawaii's. It describes Hawaii procedures for non-presidential independent candidates, but doesn't mention the Hawaii procedures for third party and independent presidential candidates. Thus it was able to disguise the truth that Hawaii requires only 3,829 signatures, due in September, whereas Oklahoma requires more than 10 times as many, due in July.
The 10th circuit implied that an independent presidential candidate in Hawaii must poll 10 percent of the vote in a primary. The truth is that Hawaii doesn't even have a presidential primary. Since COFOE's (Coalition for Free & Open Elections) brief in this case emphasized the Hawaii presidential procedure -- and the point was also made at oral argument -- one can conclude only that Judge Ebel hoped to deceive those who read his opinion.
The 10th circuit opinion said that the state has an interest in stopping factionalism, and therefore it may prevent voters from voting for weak candidates. The idea that factionalism is bad is from "The Federalist Papers" by James Madison, Alexander Hamilton, and John Jay.
Factionalism, they said, was an evil, but they meant how elected officials and pressure groups act after an election, not the election process itself.
Madison and Hamilton wrote that voters should be allowed to vote freely for the candidate of their choice. Madison said, "A Republic may be converted into an aristocracy or oligarchy as well by limiting the number capable of being elected, as the number authorised to elect." Hamilton said, "The people should choose whom they please to govern them."
In November 1992, the various third party and independent candidates who were not on the Oklahoma ballot polled 361,944 votes. Oklahoma cast 1.33 percent of the national vote. Therefore, it is likely that 4,814 (1.33 percent of 361,944) Oklahomans would have voted for such candidates, if they had been able to do so.
If 4,814 registered voters in Oklahoma had been prevented from voting because of their race, economic class, or religion, any court would have been horrified. However, in this case, several thousand Oklahomans were prevented from voting for the candidate of their choice because they happened to support parties that weren't big and rich enough to get on the ballot.
COFOE would like to appeal the decision to the U.S. Supreme Court, but it must raise $1,500 for this purpose. Anyone who contributes at least $10 toward this effort will receive a copy of the 19-page decision.
Write COFOE at P.O. Box 470296, San Francisco, CA 94147.
This article first appeared in Ballot Access News, Box 470296, San Francisco, CA 94147. Subscriptions are $8 per year.
