LP Contemplates Action Against 1142
by Ralph Shnelvar
On Friday, May 30, 2003 the Secretary of State, Donnetta Davidson, and her staff met with representatives of the Libertarian, American Constitution, and Natural Law parties. I was there as a self-appointed observer. Officially there for the Libertarian Party were Norm Olsen and David Aitken.
I was there because Doug Campbell, the official representative of the 250-member American Constitution Party, and I have been discussing how, why, and whether to bring a suit to have sections of HB1142 overturned. By default and by coincidence, I have been made an "expert" on how states can regulate political parties. I have acquired this knowledge because I was registered as a Libertarian for 4 days less than the required 365 days for my run for Governor. I needed to find out from the Secretary of State (SoS) if I would be allowed on the ballot.
Back then my experience with the SoS's office found it unexpectedly professional. It was a pleasant surprise to find a government office that was helpful and unbiased. Josh Liss of the SoS's office pointed out a U.S. Supreme Court ruling that showed that there were restraints on state legislatures as to how those legislatures can control political parties.
The sum and substance is that the Secretary of State would not enforce the -- obviously unconstitutional -- section of state law that affected my run for governor.
Unfortunately, I was in a primary battle with James Vance and was deeply worried that he would make a fuss. For similar reasons, the San Miguel Libertarian candidate for coroner, Robert Dempsey, and I decided to pay the great Libertarian lawyer, Paul Grant, for his legal opinion.
Because I did not have a lot of funds in my campaign, spending money on Paul Grant was not something I wanted to do. In order to keep costs down, I decided to do the legal research and, thus, became a reluctant "expert" on this obscure section of American constitutional law.
Attending this conference where several representatives of the SoS's office as well as the SoS, herself. My experience, again, was of vast professionalism and a desire on the SoS's part to enforce the law in an as unbiased a fashion as possible.
It is also clear that the SoS is uncomfortable with the law as it stands but has made the decision that HB1142 is the law that she must administer. She and her staff broadly hinted that they would like to see a lawsuit filed in order to clarify "these important legal questions." They asked that if we do file a lawsuit that we do so as soon as possible.
How 1142 Will Affect Us
HB1142 isn't all bad. In fact it gives us something that we have been fighting for for many years: access to primaries.
The best news is that voter registration forms will no longer list any political parties. We would have preferred it if we were listed but a list of valid political parties will be available "at most places." It is not clear whether Libertarians will need to tell voters that they can pick the Greens during our voter registration drives.
Unfortunately, 1142 has done things that we really hate.
Specifically, our Assembly (it's called an Assembly to pick state candidates and a Convention to pick federal candidates) no longer has the authority to pick "none of the above" (NOTA). As the SoS interprets the law, if someone gets 30% of the vote at our Assembly and NOTA gets 70% then that person is on the ballot no matter how unpalatable that person is to a majority of delegates. Similar objections apply when someone petitions onto the ballot.
The Greens have a similar "consensus building" mechanism. All candidates must be approved by 80% of their Assembly.
The good news is that the SoS will not have observers at our Assembly. If the Assembly certifies that there was no candidate that got 30% of the vote then the SoS will believe us. On the other hand, if a candidate complains then the SoS will say to that candidate that the candidate must take the party to court. The SoS will not act as cop.
To my mind, this is blatantly unconstitutional because it forces us to accept a delegate as a Libertarian candidate that is unacceptable. In effect, the legislature is picking our candidate(s) for us.
David asked -- several times -- for the ability to add NOTA to the primary ballot. The SoS refused, politely, several times. The good news is that the delegate selected by the assembly gets the top line on the ballot.
Other pieces of good news are that political parties can still determine the rules by which a candidate can get onto the ballot. For instance, we can insist that a candidate be a member for, say, six months.
Again, it is not clear whether we can keep someone off the ballot if, for instance, they have not signed the statement of principles.
HB1142 will go into effect in 2004. We did not argue that the 2004 election cycle is already in effect so that HB1142 should not go into effect then. I have no idea how the SoS would have reacted to that argument.
There are several other technical details. One of the nastiest is that our bylaws must be on file with the SoS by the first Monday in February. Worse, the SoS "insists" that our bylaws be in compliance with state law. But, of course, we can't do that until our Assembly...
I imagine that the Board will take emergency action to keep the Party in compliance with state law.
After our meeting with the SoS, the representatives met to determine if we would be pursuing a lawsuit.
The consensus is: "yes but."
Norm wants to know what this suit will cost us. This is quite reasonable.
Being a stingy bastard, I will investigate how to keep these cost down. The good news is that we have several legal resources:
Sunny Maynard of the Greens (who is a Colorado attorney). Unfortunately, Sunny was not at this meeting. Her level of commitment is not known.
Tim Zahn (who used to be an Oklahoma attorney). Tim is willing to do the grunt work of any lawsuit.
Several lay legal minds in the Party.
We're going to need, gasp!, money to do this lawsuit. The good news is that if we win (and - but I can't promise this - we will) we will get our legal expenses reimbursed. This has already happened in a lawsuit(s) that Doug Campbell has filed with Paul Grant.
In terms of the money necessary to acquire the appropriate level of legal resources, Norm wrote, "Please allow the LPCO Fundraising Team decide how and when to raise the funds necessary."