On March 29, 2021, Judge Leigh Martin May, of the U.S. District Court for the Northern District of Georgia, struck down a Georgia law requiring minor-party and unaffiliated candidates for the U.S. House of Representatives to submit petitions signed by at least 5 percent of the district’s registered voters in order to appear on the ballot. May ruled this requirement “overburdens [voters’ and candidates’] rights to vote and to associate with their preferred political party, and so it violates the First and Fourteenth Amendments.”
May contrasted the 5-percent signature requirement for U.S. House candidates with the 1-percent requirement for statewide candidates, “The [Georgia] General Assembly has deemed a 1% petition signature requirement adequate to guard against ballot crowding and frivolous candidacies on a statewide basis. It is not immediately clear why candidates for non-statewide office must clear a proportionally higher hurdle, the 5% petition signature requirement. [The state] has not offered any explanation for this disparity.”
May has not yet ordered a remedy. She directed the plaintiffs (the Libertarian Party of Georgia) to submit a brief within three weeks on proposed remedies. The state will then have an opportunity to respond to this proposal before May issues further guidance.
Under the 5-percent signature requirement, originally enacted in 1943, no minor-party candidate for the U.S. House has qualified for placement on the general election ballot. In 2020, minor-party or unaffiliated candidates would have needed between 19,777 and 26,539 signatures in order to qualify for the ballot (the number varies by congressional district).
It is not clear whether the state will appeal the decision.
In light of the ongoing COVID-19 pandemic, the two states conducting regular state-level elections in 2021—New Jersey and Virginia—have both made temporary modifications to their candidate ballot access procedures.
Ballot access procedures dictate whether a candidate or political party will appear on an election ballot. These laws are implemented and enforced at the state level. A candidate must prepare to meet ballot access requirements well in advance of primaries, caucuses, and the general election.
New Jersey: On January 25, 2021, Governor Phil Murphy (D) issued Executive Order No. 216, which provided that filing officers “allow for any candidate, delegate, recall, initiative, referendum, or other petition required to be filed prior to an election to be submitted by hand delivery and electronically.” The order also allows for petition signatures to be collected electronically.
Virginia: In January 2021, the Virginia Department of Elections settled a lawsuit over ballot access requirements for statewide candidates in 2021. As a result of the settlement, the signature requirement for statewide petitions was reduced from 10,000 to 2,000, with at least 50 signatures from each U.S. House District (as opposed to the statutory requirement of 400 signatures per district). The settlement also provided for petition signers to submit their signatures electronically.
Ballot access changes in 2020: In 2020, at least 20 states made temporary modifications to their ballot access procedures: Alabama, Connecticut, Florida, Georgia, Illinois, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, Rhode Island, Texas, Utah, Vermont, Virginia, and Washington.
As of October 30, voters have cast at least 53.7 million absentee/mail-in ballots according to the New York Times.
Forty-four states and the District of Columbia offer online ballot tracking for all voters. Texas and New York provide online ballot tracking only for military and overseas voters. Four states have no online ballot tracking at the state level. In those states, voters can contact their local elections office to request information on the status of their ballot.
Ballot tracking systems offer different information depending on the state, but many indicate when a ballot is in transit, when it has been received, and when it has been counted.
Some online ballot tracking systems notify voters when there is a problem with their mail ballot, such as a missing signature. Eighteen states are legally required to notify voters of such problems and provide an opportunity to fix them. This notification and correction process is called ballot curing.
There is one state constitutional amendment on the ballot in Illinois for November 3, 2020. The constitutional amendment would repeal the requirement that the state’s personal income tax is a flat rate across income. Instead, the amendment would allow for legislation to enact a graduated income tax. Contributions to the campaigns surrounding the amendment have topped $80 million.
Gov. J.B. Pritzker (D) advocated for a graduated income tax structure for Illinois during his 2018 gubernatorial campaign. One of his former staffers, Quentin Fulks, is chairing the campaign Vote Yes for Fairness to support the amendment. Through September 18, the campaign Vote Yes For Fairness, along with allied committees, had received $58.97 million. Gov. Pritzker provided the campaign with $56.5 million, or 96 percent of supporters’ total funds. Other top donors include the AARP ($664,680), Omidyar Network ($500,000), National Education Association ($350,000), and American Federation of Teachers ($250,000).
Opponents of the constitutional amendment have organized four PACs, and two of them have received funds through September 18—the Coalition to Stop the Proposed Tax Hike and the Say No to More Taxes. Between the PACs, opponents had received $21.65 million. Kenneth Griffin, CEO of the investment firm Citadel, contributed $20.00 million to the Coalition to Stop the Proposed Tax Hike. The Illinois Opportunity Project, a 501(c)(4) nonprofit organization, donated $550,000. Other top donors—who each gave $100,000—include Richard Uihlein, the Samuel Zell Revocable Trust, and MacNeil Automotive Products.
While the constitutional amendment itself would not adopt a graduated income tax, the Illinois State Legislature passed legislation to go into effect if voters approve the amendment. The legislation would change the state’s income tax from a flat rate to six graduated rates beginning on January 1, 2021. Currently, income is taxed at a flat rate of 4.95% in Illinois. Under the bill, the proposed tax rates would range from 4.75% to 7.99%.
At the election on November 3, the constitutional amendment needs to receive either (a) 60 percent of votes cast on the ballot measure itself or (b) a simple majority of all of those voting in the election. Since 1996, voters have approved 83 percent of the constitutional amendments put on the ballot by the legislature. The last amendment that was rejected would have required a three-fifths approval by the General Assembly, city councils, and school districts to increase the pension benefits of their employees.
The Illinois constitutional amendment is one of three income tax-related ballot measures in 2020. In Arizona, Proposition 208 would enact a 3.50% income tax, in addition to the existing income tax (4.50% in 2020), on income above $250,000 (single filing) or $500,000 (joint filing). Proposition 208 would distribute the revenue from the 3.50% income tax to teacher and classroom support staff salaries, retention programs, and career and technical education programs. In Colorado, Proposition 116 would decrease the state’s flat income tax rate from 4.63% to 4.55%.
Voters in five states will decide ballot measures related to electoral systems on November 3, 2020. Policies that are on the ballot include ranked-choice voting, top-two and top-four primaries, the national popular vote interstate compact, and runoff elections. Most (4 of 5) of the ballot measures came through the citizen-initiated petition process.
In Colorado, Proposition 113 asks voters whether to uphold or repeal legislation to add the state to the National Popular Vote Interstate Compact (NPVIC). The NPVIC was designed to give the state’s electoral votes to the presidential candidate who wins the nationwide popular vote. It would take effect is states representing at least 270 electoral votes join the NPVIC. In 2019, the Democratic-controlled Colorado State Legislature passed a bill to join the NPVIC. Two Republicans— Mesa County Commissioner Rose Pugliese and Monument Mayor Don Wilson—filed a veto referendum on the bill resulting in Proposition 113. Currently, 14 states and Washington, D.C., (representing 187 electors in the Electoral College) have adopted legislation to join the compact.
In Massachusetts and Alaska, voters will decide ranked-choice voting ballot initiatives. Massachusetts Question 2 would enact ranked-choice voting for federal, state, and some local primaries and general elections. Alaska Ballot Measure 2 would use ranked-choice voting for general elections but not primaries. Instead, Ballot Measure 2 would adopt top-four primaries in which all candidates run on the same ballot regardless of partisan affiliation, and the four who receive the most votes move on to the general election.
Massachusetts and Alaska could be the second and third states to adopt ranked-choice voting for at least some statewide elections. In 2016, Maine became the first state to enact a state system of ranked-choice voting after voters approved a ballot measure. In both Massachusetts and Alaska, the top donors behind the measures are the Action Now Initiative and Unite America.
While Alaska Ballot Measure 2 would adopt top-four primaries, Florida Amendment 3 would replace the state’s closed primaries with top-two open primaries for elected state offices. Florida would join California and Washington in using top-two open primaries. Miguel Fernandez, a businessman and investor, is funding the campaign.
Voters in Mississippi will decide a legislative referral to change how the governor and state officials are elected. Heading into November, the Mississippi Constitution requires that gubernatorial and state official candidates receive the most votes statewide and the most votes in a majority of the 122 state House districts to win the election. If no candidates win a majority of the state House districts, then state representatives decide the election. The ballot measure would repeal the majority-of-House-districts requirement and, instead, require candidates to win a majority of the vote. If no candidate wins a majority of the vote, then a runoff election would be held between the top two candidates under the measure.
This year’s electoral system ballot measures would—or in the case of Colorado, could—impact how candidates are elected in the future.
Although there is no formal, national deadline to file to run for president of the United States, independent presidential candidates must keep a close eye on the election calendar as each state has its own filing requirements and deadline to qualify to appear on the general election ballot.
These requirements may include submitting a petition with a certain number of signatures or paying a filing fee.
Filing deadlines for independent presidential candidates have already passed in 43 states.
In the week of August 31, the final seven filing deadlines will pass:
• North Dakota (August 31)
• Delaware (September 1)
• New Hampshire (September 2)
• Arizona (September 4)
• Kentucky (September 4)
• Mississippi (September 4)
• Rhode Island (September 4)
The following chart shows how many days are left until each remaining state’s filing deadline passes:
A veto referendum concerning eye surgeries, which was certified on January 31 to appear on the November ballot, is awaiting a final determination from the Arkansas Supreme Court about whether it will remain on the ballot.
Arkansans for Healthy Eyes (opponents of the veto referendum effort) filed a lawsuit on February 28, 2020, alleging that Safe Surgery Arkansas, the sponsors of the veto referendum effort, fraudulently gathered signatures and misled petition signers. On April 2, 2020, the Arkansas Supreme Court appointed Special Master Mark Hewett to conduct a hearing and review petitioners’ claims and to submit a report of his findings to the court.
Arkansas state law requires sponsors to certify to the Secretary of State that each paid canvasser passed a state and federal criminal background check. Safe Surgery Arkansas certified that the “background check, as well as a 50-state background check, have been timely acquired.”
In his report on July 13, Special Master Mark Hewett found that state law—§ 7-9-601(b)(3)—requires sponsors to certify that canvassers passed the background checks and that Safe Surgery Arkansas’ certification said instead that the checks were acquired.
Alex Gray of Safe Surgery Arkansas said he was confident that the Supreme Court would allow the signatures to stand. A supreme court ruling is expected in mid to late August.
On July 14, 2020, Arkansas Secretary of State John Thurston determined that signature petitions for three citizen initiatives for which proponents submitted signatures on July 6 are insufficient based on the requirement that sponsors certify that canvassers passed background checks and said his office was barred from counting the signatures that were submitted.
Arkansas Wins in 2020, sponsors of an amendment to authorize 16 additional casinos, did not file the certification. Similarly to Safe Surgery Arkansas, the Arkansas Voters First and Open Primaries Arkansas campaigns submitted certifications stating that the background checks were acquired but did not say they were passed. Arkansas Voters First is supporting an amendment to create an independent redistricting commission. Open Primaries Arkansas is supporting a top-four open primary ranked-choice voting initiative. Safe Surgery Arkansas, Arkansas Voters First, and Open Primaries Arkansas used petition gathering company National Ballot Access to gather signatures.
The campaigns asked the state supreme court on July 17 to order Secretary of State John Thurston to count the signatures and give the groups at least 30 days to collect additional signatures. In Arkansas, if petitioners fail to meet the signature requirement, but the petitioners have gathered at least 75% of the valid signatures needed, petitioners have 30 days to collect additional signatures or demonstrate that rejected signatures are valid.
David Couch, attorney for the redistricting and ranked-choice voting measures, said he would file an amicus brief in the veto referendum case that is pending supreme court action.
The state legislature has referred three constitutional amendments to the 2020 ballot that would (1) make permanent a 0.5 percent sales tax to fund transportation otherwise set to expire in 2023, (2) change term limits for state legislators, and (3) change initiative process and legislative referral requirements.
From 1996 through 2018, an average of four measures appeared on the ballot during even-numbered years in Arkansas. During even-numbered years between 1996 and 2018, 73% (35 of 48) of statewide ballot measures in Arkansas were approved by voters, and 27% (13 of 48) were defeated.
Voter Choice for Massachusetts, the campaign sponsoring the ranked-choice voting initiative, announced on Twitter on July 10 that Massachusetts Secretary of State William Galvin had certified the initiative for the November ballot. The secretary of state confirmed that 17,512 of the 25,000 signatures submitted for the second deadline were valid. A total of 13,374 valid signatures was required.
The Massachusetts Ranked-Choice Voting Initiative would enact ranked-choice voting (RCV) for primary and general elections for state executive officials, state legislators, federal congressional and senate seats, and certain county offices beginning in 2022.
RCV is a voting method in which voters rank candidates according to their preferences. The candidate that receives a majority of first-preference votes is declared the winner. If no candidate wins a majority of first-preference votes, the candidate with the fewest first-preference votes is eliminated. First-preference votes cast for the failed candidate are eliminated, and the second-preference choices indicated on those ballots are tallied as their first preference in the following round. The process is continued until a candidate wins a simple majority (50%+1) of the vote.
As of 2020, Maine was the only state to use RCV for state-level elections. Currently, Cambridge, Massachusetts, is the only jurisdiction in the state to have used the voting system. Amherst and Easthampton have also adopted the system and are working on implementing it.
Voters in Alaska will also decide a ranked-choice voting initiative in November, and proponents of RCV initiatives in Arkansas and North Dakota submitted signatures in early July to qualify their measures for the November ballot.
The power of initiative is indirect in Massachusetts, which means the Massachusetts General Court must consider any successful initiative proposals. Petitions targeting the 2020 ballot had to first be cleared for circulation by the state attorney general before submitting the first round of 80,239 signatures (3 percent of the votes cast for governor in the last election) by December 4, 2019. Of the 10 initiatives cleared for circulation in September 2019, four initiatives submitted the first round of signatures. Voter Choice for Massachusetts reported submitting 111,268 raw signatures.
The Massachusetts General Court did not act on any of the indirect initiatives by the May 5, 2020 deadline, requiring the four remaining campaigns to submit a second round of signatures (0.5 percent of the votes cast for governor) by July 1, 2020.
Due to the coronavirus pandemic and subsequent restrictions on social gatherings, the four campaigns filed a joint lawsuit on April 26 against the secretary of state asking the Supreme Judicial Court to allow the campaigns to gather the second round of 13,347 signatures electronically.
On April 29, all four active ballot initiative campaigns and Secretary Galvin agreed to a resolution that allowed the campaigns to gather the second round of signatures electronically. Campaigns distributed the petitions online to be electronically signed or printed and mailed back to the respective campaign.
On June 17, 2020, Voter Choice for Massachusetts announced that it had submitted over 25,000 raw signatures for the second round. In the press release from Voter Choice Massachusetts, Cara Brown McCormick, a senior advisor to the campaign, said, “This was the first electronic signature drive to get a citizen’s initiative on the ballot in American history.”
The secretary of state also certified the Massachusetts “Right to Repair” Initiative, which would expand the access to telematics systems for vehicle owners and independent repair shops. Massachusetts voters approved a “right to repair” initiative in 2012. Proponents of the 2020 initiative argue that the 2012 law needs to be updated to account for recent technological advances.
Between 1996 and 2018, an average of three measures appeared on the ballot in Massachusetts during even-numbered election years. A total of 39 measures appeared during that period with 54% of the measures approved.
Massachusetts Secretary of State William Galvin reported that 17,596 of the 26,000 signatures submitted for an initiative referred to as Right to Repair were valid, certifying the initiative for the November ballot.
The initiative would require manufacturers that sell vehicles with telematics systems in Massachusetts to equip them with a standardized open data platform beginning with the model year 2022 that vehicle owners and independent repair facilities may access to retrieve mechanical data and run diagnostics through a mobile-based application.
In 2012, Massachusetts voters approved its first “right to repair” initiative that required automobile manufacturers to provide non-proprietary diagnostic information and safety information needed to repair cars directly to consumers and independent repair facilities. The 2012 law required that such information be made available through an “off-the-shelf personal computer.” The initiative was approved with 87.7% of the vote.
Alan Saks, the owner of Dorchester Tire Service and a supporter of the 2020 initiative, said, “We need to update the Right to Repair law before wireless technologies remove the car owner’s right to get their vehicle repaired at our local, independent shop because the automaker would rather steer them towards one of their more expensive dealers.”
The power of initiative is indirect in Massachusetts, which means the Massachusetts General Court must consider any successful initiative proposals. Petitions targeting the 2020 ballot had to first be cleared for circulation by the state attorney general before submitting the first round of 80,239 signatures (3 percent of the votes cast for governor in the last election) by December 4, 2019.
Of the 10 initiatives cleared for circulation in September 2019, four initiatives submitted the first round of signatures. Right to Repair Massachusetts submitted 103,634 raw signatures on December 4, 2019. The state legislature did not act on the initiative before the May 5, 2020 deadline, requiring the campaign to gather an additional 13,374 signatures (0.5 percent of the votes cast for governor) by July 1, 2020.
On April 26, the four remaining initiative campaigns filed a lawsuit against the secretary of state asking the Supreme Judicial Court to allow the campaigns to gather the second round of 13,347 signatures electronically. On April 29, all four active ballot initiative campaigns and Secretary Galvin agreed to a resolution that allowed the campaigns to gather the second round of signatures electronically. Campaigns distributed the petitions online to be electronically signed or printed and mailed back to the respective campaign. Right to Repair Massachusetts reported submitting over 26,000 unverified signatures by the July 1 deadline.
The secretary of state also certified the Massachusetts Ranked-Choice Voting Initiative, which would enact ranked-choice voting (RCV) for primary and general elections for state executive officials, state legislators, federal congressional and senate seats, and certain county offices beginning in 2022. Currently, Maine is the only state that uses RCV for state-level elections. Currently, Cambridge, Massachusetts, is the only jurisdiction in the state to use the voting system. Amherst and Easthampton have also adopted the system and are working on implementing it.
Between 1996 and 2018, an average of three measures appeared on the ballot in Massachusetts during even-numbered election years. A total of 39 measures appeared during that period with 54% of the measures approved.
On July 15, the Minneapolis Charter Commission will hold a public hearing on a proposed charter amendment that would remove all reference to the city’s police department from the charter and add a section establishing the Department of Community Safety and Violence Prevention. The Minneapolis City Council proposed this amendment for the Nov. 3 ballot.
The measure would:
Eliminate charter provisions concerning the city’s police department.
Establish the Department of Community Safety and Violence Prevention and the director of the new department.
The director of the department would be nominated by the mayor and confirmed by the city council.
Allow a Division of Law Enforcement Services within the new department;
The division would be made up of licensed peace officers.
Its director would be appointed by the director of the Department of Community Safety and Violence Prevention.
Give the city council authority to establish the Division of Law Enforcement Services.
Currently, the mayor has authority over the police department and nominates the police chief, who must be confirmed by the city council. The existing charter also requires the city council to provide funding to the police department to provide for “a police force of at least 0.0017 employees per resident.”
Minneapolis City Council members Jeremiah Ellison, Alondra Cano, Cam Gordon, Steve Fletcher, and President Lisa Bender sponsored the proposal.
Councilmember Jeremiah Ellison said, “No singular action is going to undo longstanding systemic oppression, racial oppression. This is one action of many that we need to take on the road to a more equitable and just system that keeps people safe.”
Mayor Jacob Frey opposes the amendment. He argued that the amendment was unclear and that diverting accountability away from the mayor and the police chief and giving authority to the city council was a bad idea. Frey said, “Will we still have police? If you vote for this, are you voting to abolish the police department or is this merely a cosmetic change where you add a bureaucratic layer, you change the name to peace officer and give them different uniforms?” Frey also said, “If this is about me. There’s an election next year.”
Here is a timeline of the events leading up to the charter amendment and how far this measure has progressed:
May 25: Minneapolis police officers arrested George Floyd, a Black man, after receiving a call that he had made a purchase with a counterfeit $20 bill. Floyd died after one officer, Derek Chauvin, arrived at the scene and pressed his knee onto Floyd’s neck as Floyd laid face-down on the street in handcuffs.
June 12: Sponsors of the proposal gave notice that they would introduce it at the following council meeting.
June 26: The Minneapolis City Council voted unanimously to send the proposed charter amendment to the Minneapolis Charter Commission.
While the city council does not have to follow the recommendation of the charter commission, the city council cannot act on the proposal before receiving an official recommendation from the charter commission according to state law.
The charter commission has a maximum of 150 days to review charter amendment proposals from the city council.
The city council must give final approval to the charter amendment by August 21 to put the measure on this year’s ballot. It requested the charter commission to expedite its review.
July 1: The charter commission scheduled the first of two public hearings on the amendment for July 15.
August 5: In response to the request for an expedited timeline, Commission Chair Barry Clegg said that the commission would consider a final decision on the proposal during its August 5 meeting, allowing for a vote by the city council by August 21 if the commission agrees on a recommendation. Clegg said, however, “If we elect to take our additional time, this ballot question will not be on the ballot in November.”
August 21: The deadline for the city council to approve the amendment for the Nov. 3 ballot.
This is not the first time the city council has tried to put a charter amendment concerning the police department on the ballot. In 2018, the Minneapolis City Council voted 7-5 to send a charter amendment proposal to the Minneapolis Charter Commission that would have repealed provisions in the charter giving the mayor complete control over the city’s police department. The measure would have allowed rules and regulations for the police department to come from both the city council and the mayor. The charter commission did not make a recommendation to the city council in time for the city council to put the measure on the 2018 ballot.
Click here for the timeline of that 2018 charter amendment proposal.