Legal Action

CCD promotes free, open and competitive elections by engaging in legal advocacy on behalf of candidates, voters and citizens regardless of political affiliation. We use litigation to eliminate barriers to meaningful participation in the political process. If you are an attorney or activist who would like to work with CCD, please contact us.

Colorado    District of Columbia

Georgia    Maine

North Dakota    Pennsylvania

Colorado

Johnson v. Beuscher, No. 2010-cv-7624 (Dist. Ct., Denver, Co. 2010) On March 18, 2011, CCD joined Citizens in Charge, the Humane Society of the United States and the National Taxpayers Union in filing an amicus brief on behalf of Colorado residents John Caldara and Linda Gorman, who sponsored a petition for the placement of an initiative on Colorado’s November 2010 statewide ballot. Caldara and Gorman are now defending an effort by political opponents who challenged their petition to collect costs and attorneys’ fees arising from the proceedings. The challengers allege that 51 petition circulators committed “address fraud” by listing their temporary Colorado addresses on a form that requested a Colorado address, even though the Colorado Secretary of State provided no clear guidance as to how the form should be completed, in light of a federal court order requiring that Colorado permit out of state residents to circulate petitions. CCD and the other amici oppose the imposition of costs and attorneys’ fees against Caldara and Gorman on the ground that petition circulation is core conduct protected by the First Amendment, and furthermore, neither the petition circulators nor Caldara and Gorman committed “address fraud” by using the circulators’ temporary Colorado addresses. Therefore, to allow the imposition of costs and fees would violate Caldara’s and Gorman’s First Amendent rights, and it would also chill the rights of all Coloradoans to participate in direct democracy through the citizens’ initiative process. The case is pending in the District Court for the City and County of Denver, Colorado.

Amicus Brief Opposing Impostition of Costs and Fees

Challengers’ Motion for Attorneys’ Fees

Challengers’ Complaint

District of Columbia

Libertarian Party v. D.C. Board of Elections and Ethics, No. 09-cv-01676 (D.C. Sup. Aug. 7, 2009) On August 7, 2009, CCD filed a lawsuit in the Superior Court of the District of Columbia, on behalf of write-in voters and candidates in the District of Columbia, challenging election officials’ failure to include vote totals for each qualified write-in candidate in D.C.’s official vote tally. Currently, D.C. only reports the total number of write-in votes cast in each election, but does not report the total number of votes that each qualified write-in candidate received. The plaintiffs include the Libertarian Party, former Rep. Bob Barr, who was the Libertarian Party candidate for president in the 2008 General Election, and D.C. voters who cast write-in votes for Barr in 2008. The immediate goal of the lawsuit is to protect the constitutional rights of write-in candidates and voters to participate in elections in the District of Columbia. A primary goal of minor party and independent candidates is to influence public policy by establishing electoral support for ideas and programs that the major party eventually adopt. In addition, minor political parties that receive five percent of the votes cast in a presidential election qualify for public funding in the next presidential election. It is therefore important that all votes cast for minor party and independent candidates in each state are counted, even if such votes are not sufficient for a write-in candidate to win the election in any particular state, because the candidates may nevertheless accomplish important goals. Attorney Gary Sinawski of Brooklyn, New York serves as Plaintiffs’ co-counsel.

Update (April 11, 2011): On September 2, 2009, the D.C. Board of Elections removed the case to the federal District Court for the District of Columbia and moved to dismiss. Plaintiffs opposed that motion and cross-moved for summary judgment. On March 8, 2011, the District Court entered an opinion concluding that it is “a close question” whether the First Amendment protects Plaintiffs’ right to have the results of their votes reported on an equal basis with all other valid votes, but denied them summary judgment and dismissed the case. On April 11, 2011, Plaintiffs appealed to the federal Court of Appeals for the D.C. Circuit.

Complaint

Letter to DCBOEE – Nov. 10, 2008

Letter to DCBOEE – Dec. 9, 2008

DCBOEE Replies

District Court Opinion

Georgia

Coffield v. Handel , No. 1:08-CV-2755-RLV (N.D. Ga. May 26, 2009) (unreported), aff’d, 599 F.3d 1276 (11th Cir. March 19, 2010), petition for certiorariCoffield v. Kemp, No. 10-596 On December 6, 2010, CCD, the Coalition for Free and Open Elections, and Free & Equal filed an amicus brief in the United States Supreme Court, in support of the petition for certiorari filed by Faye Coffield, an independent candidate for U.S. House who was denied access to Georgia’s 2008 general election ballot. No minor party or independent candidate for U.S. House has successfully petitioned to access Georgia’s ballot since the state increased its requirements in 1964 – a period of 46 years. The case is Coffield v. Kemp, No. 10-596. The district court and the Federal Court of Appeals for the 11th Circuit summarily dismissed Coffield’s challenge to Georgia’s 5 ballot access requirements, on the ground that the Supreme Court upheld them inJenness v. Fortson, which was decided in 1971. In Jenness, however, the Court relied on the fact that minor party candidates had been able to access Georgia’s ballot in recent elections. The 11th Circuit discounted the fact that no minor party or independent candidate for U.S. House has done so since then on the ground that Coffield did not allege how many have tried. The purpose of CCD’s amicus brief is to provide the Court with facts confirming that many candidates have tried but failed to comply with Georgia’s petitioning requirements in the 46 years since Jenness was decided. This is significant because the Court has repeatedly concluded that courts reviewing the constitutionality of ballot access laws must consider whether or not candidates are able to comply with them.

Petition for Certiorari

Amicus Brief

Maine

Hoffman v. Knutson, No. 08-375 (Aug. 20, 2008) On August 14, 2008, CCD joined an Emergency Application for a Stay of Enforcement, submitted to the United States Supreme Court on behalf of Herbert J. Hoffman, independent candidate for United States Senate in Maine’s 2008 General Election. The Application requested the Court to stay enforcement of a July 28, 2008 decision of the Supreme Judicial Court of Maine, so that Hoffman could file a Petition for Certiorari. The Maine state court decision removed Hoffman from Maine’s ballot, even though all parties conceded that he had submitted a nomination petition with more valid signatures than state law required. Hoffman could not prove that three particular signatures had been signed in the “presence” of his petition circulators, however, according to the unspecified legal definition of that term, and so the three signatures in question were invalidated, together with every other signature on the three petition sheets in question, even though the signatures themselves were not found to be invalid. Justice Souter denied the Application on August 20, 2008.

Emergency Application for Stay

North Dakota

Libertarian Party of North Dakota v. Jaeger, No. 3:10-cv-64 (N.D. July 14, 2010) On July 14, 2010, CCD filed a lawsuit in federal district court for North Dakota to challenge the constitutionality of a state law that bars winners of the North Dakota Libertarian Party’s primary election from appearing on the general election ballot, because they did not receive a specified minimum number of votes. The plaintiffs are the North Dakota Libertarian Party and three of its candidates for state legislature – Richard Ames, Thommy Passa and Anthony Stewart – each of whom was denied placement on North Dakota’s November 2, 2010 general election ballot, despite being the undisputed winner of the party’s primary election in June. The lawsuit challenges N.D.C.C. § 16.1-11-36 on the ground that the statute burdens plaintiffs’ First and Fourteenth Amendment rights without furthering any legitimate state interest. The Libertarian Party became ballot-qualified in North Dakota by submitting a nomination petition with more than 7000 valid signatures, as required by law. Therefore, the lawsuit alleges, the Libertarian Party has already demonstrated support among the electorate, and North Dakota has no basis for requiring the party’s primary election winners to receive a minimum number of votes in order to access the general election ballot. On July 29, 2010, CCD filed a motion for preliminary injunction, which requests that the court direct North Dakota Secretary of State Alvin A. Jaeger to certify the Libertarian Party candidates for inclusion on North Dakota’s November 2 general election ballot in time for the statutory deadline of September 8, 2010.

Update (November 26, 2010): CCD files appeal in Federal Court of Appeals for the Eighth Circuit on behalf of the North Dakota Libertarians. In September, the federal district court upheld North Dakota’s minimum vote requirement and denied the Libertarians’ request for an injunction placing them on the general election ballot, but failed to consider whether the requirement is unconstitutionally burdensome, measured as a percentage of the eligible pool of voters. In some districts, the requirement amounts to more than 15 percent of the eligible pool – a burden more than three times greater than the most restrictive ballot access requirement the Supreme Court has upheld, which was Georgia’s 5 percent requirement in Jenness v. Fortson.

Complaint

Motion for Preliminary Injunction

Brief of Appellants in Federal Court of Appeals for the Eighth Circuit

Pennsylvania

Rogers v. Cortes, 426 F. Supp. 2d 232 (M.D. Pa. 2006), aff’d, 468 F.3d 188 (3rd Cir. 2006), cert denied, No. 06-1721 (Oct. 1, 2007). On July 30, 2007, CCD submitted an amicus brief before the United States Supreme Court in support of the Petition for Certiorari in Rogers v. Cortes, which was filed on behalf of the Constitution, Green and Libertarian Parties of Pennsylvania. The Petitioners challenge the Third Circuit’s decision in Rogers, which upheld Pennsylvania’s requirement that they submit nomination petitions with signatures equal in number to two percent of the vote cast for any winning candidate for statewide office in the previous election. CCD’s amicusbrief argues that the requirement severely burdens Petitioners by subjecting minor party candidates to grossly unconstitutional financial burdens of $80,000 or more, by forcing minor party voters to cast write-in votes that the state fails to count, and by terminating Petitioners’ status as qualified political parties in Pennsylvania. No other state in the nation – including Pennsylvania prior to 2004 – penalizes candidates for seeking ballot access by forcing them to pay litigation costs to private parties who sue to challenge their nomination petitions. Yet in 2004 and 2006, Pennsylvania ordered minor party or independent candidates to pay more than $80,000 each to private parties who sued to remove them from the ballot. These orders not only deter minor party and independent candidates from running for public office, but they also conflict with Supreme Court precedent holding that states may not require candidates to pay costs associated with holding an election. SeeLubin v. Panish, 415 U.S. 709 (1974) (striking down candidate filing fees ranging up to $982); Bullock v. Carter, 405 U.S. 134 (striking down candidate filing fees ranging up to $8,900). Nevertheless, the Court denied certiorari on October 1, 2007.

CCD Amicus Brief 

District Court Decision 

3rd Circuit Court of Appeals Decision

Constitution Party of Pennsylvania, et al. v. Cortes, et al., No. 09-1691 (E.D. Pa. 2009) On April 21, 2009, CCD filed suit in the federal district court for the Eastern District of Pennsylvania on behalf of the Constitution, Green and Libertarian Parties of Pennsylvania, pursuant to 42 U.S.C. S 1983, to challenge the constitutionality of three aspects of Pennsylvania’s electoral system. First, Pennsylvania requires the candidates of any party whose membership accounts for less than 15% of registered voters to submit nomination petitions to qualify for ballot access, no matter how many votes the party’s candidates won in the previous election. Second, Pennsylvania allows private parties to challenge candidates’ nomination petitions, and authorizes courts to order candidates to pay the private parties’ costs and fees, in amounts that have twice exceeded $80,000 in recent elections. Third, Pennsylvania provides a mechanism for casting write-in votes, but elections officials fail to ensure that such votes are counted and reported. The challenged aspects of Pennsylvania’s Election Code strongly deter or functionally bar minor party and independent candidates from participating in Pennsylvania’s elections. Such candidates must either submit nomination petitions, and risk incurring severe financial burdens, or run as write-in candidates, and risk the disenfranchisement of their voter-supporters. The lawsuit seeks a declaratory judgment holding the relevant provisions of the Pennsylvania Election Code unconstitutional, and injunctive relief requiring Pennsylvania elections officials to count and report all valid write-in votes.

Update (October 19, 2010): Following the district court’s dismissal in March, the Constitution, Green and Libertarian Parties of Pennsylvania appealed to the United States Court of Appeals for the Third Circuit, on the ground that the district court failed to rule on two out of the three counts in the minor parties’ complaint (Count I and Count III), and that the district court erred by finding that the minor parties lack standing to challenge the Election Code provision authorizing the assessment of $80,000 or more in costs and fees against minor party candidates who defend nomination petitions that they are required by law to submit (Count II). The district court concluded that the minor parties’ injury resulting from the assessment of such costs is “conjectural” or “hypothetical,” rather than real and imminent. The district court declined to reconsider its dismissal on July 16, 2010. One month later, every minor party candidate for statewide office in Pennsylvania was forced to withdraw from the 2010 general election, after major party operatives challenged their nomination petitions, due to the risk that costs would be assessed against the candidates if they defended their petitions.

Complaint 

Press Release

Brief of Appellants in Federal Court of Appeals for the Third Circuit

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