shall be held in each State on the Tuesday next after the first Monday in November in every fourth year.

Now, to the extent that any State had any different ideas in mind, be they party rules or caucuses or whatever, they have to bend to that establishment of a uniform date for the general election. By the same token, if you have, as I think you do, the power to establish a uniform date for a Presidential primary or a caucus, I suggest that any State rule or party rule to the contrary, as far as the date is concerned, would have to bend by virtue of the preemption that Congress has established in that connection.

I don't think this setting of a date goes very far into implicating any first amendment rights of the parties or the voters.

Mr. SWIFT. I'm not sure you two are in disagreement on that. I think you may have said it differently-or is there a little area of disagreement?

Mr. DURBIN. I think that when you get into the electoral college, you're dealing with the general election, which is all the Founding Fathers really thought of when they created the Presidential election process. The provisions dealing with the electoral college basically provide that the legislatures of the States may select the manner in which the electors are elected.

Well, for the sake of practicality, because we are really a two major party system, obviously the State legislatures in most of the States turn over the process to each of the major political parties to elect electors in any way they want to. So, obviously, the electors that appear on the general election ballot are going to be supportive, in most cases, of the Presidential candidates that are nominated at the national conventions.

That part of it-you know, the Federal statute could change that part of it. But when you get into the nominating processes-and the nominating process is really the selection of delegates-when you get into that, you are really dealing with a party structure. You are dealing with a party entity. A party entity, as the Supreme Court in a number of instances has said, has first amendment freedom of association, free speech, and expression rights. So I think when you would dictate to a political party how to select their delegates, you are entering into a gray area.

Now, let me put out another scenario. This often happens on a State level, when State election laws are passed. The majority party dictates to the minority party the way these are to run-the dates of the primary, the dates of the selection of delegates, the dates of the caucuses. This has often been a problem.

Now, in California, for example, in the selection of delegates, in each of the Presidential election years before the selection of delegates, each party will propose an election statute. Then the assembly adopts that election statute that is drafted by each party, so there is not that conflict. But I propose to this subcommittee, do you want a majority party, whichever party it would be, to dictate the way in which the selection of delegates is to occur to a minority party? That's the problem that you would have in this area. It is an associational problem.

You can regulate dates, and if the parties wish to comply, then they could be bound by that Federal statute. But I think it has to be a voluntary binding.

we

Mr. SWIFT. If I understand what you both have told me so far, can set the date, and we can supersede State laws in that regard. What you're telling me is, theoretically, a party could hold its own primary election at some other time, right? Now, exactly how they do that

Mr. DURBIN. Let me just comment on that. It would not be feasible for a political party to hold its primary outside of the mechanism established by the State for financial reasons, because of the fact that there is a time when everybody goes to the polls and you have to get the ballot printed up. The State election mechanism does that. So the parties do comply very much with the election system of the State because of that.

Now, in South Carolina, remember in one Presidential election year the South Carolina Republicans held their own Presidential primary, and I think they used the State mechanism by which to do that. But it was totally a party primary. But, generally speaking, if parties do not wish to go with the Presidential-preference primary, that Congress would set, they would then not do it by the primary process but would do it by a caucus convention process.

Mr. SWIFT. Certainly. And so what I was suggesting is we can supersede the State. The party, if it chooses, can find a mechanismand it probably wouldn't be a primary; it would be as caucus or some other system-but they could go outside the parameters that we set

Mr. DURBIN. Yes.

Mr. SWIFT [continuing]. To a totally party rule process to do it in their State any way they wished?

Mr. DURBIN. Yes; either a national party rule and State party rule process, because they usually mesh together.

Now, keep in mind, one of the last statements I made in my statement is that if Congress wishes to attract the parties into this process, then provide some sort of public funding for them, some sort of public grants, and condition that money on the fact that they comply with the scope of the regulations you wish to impose. Mr. SWIFT. I thank you both. You have been extremely helpful in laying out the parameters of the area in which we can function to deal with the problem. I appreciate your support and help on this a great deal.

Mr. DURBIN. Thank you, Mr. Chairman.

Professor GRESSMAN. Mr. Chairman, may I just add one last sentence?

Mr. SWIFT. Certainly.

Professor GRESSMAN. Perhaps one way to distinguish some of these early preelection operations is to remember that basically what we're concerned with here is the right of the voters, of the people, to have a free system of elections that preserves the integrity of the process. As long as the States somehow involve the public in these preelection processes-be they by way of caucuses or conventions, let alone primaries-but to the extent that the people and voters get involved in those processes, I think Congress' power to preserve the integrity of their ultimate voting power at the general election prevails.

But when you get into other areas of trying to control what vote the delegate shall have, or how they shall be selected, then you're

getting into the gray area of the first amendment rights that Mr. Durbin has pointed out.

Mr. SWIFT. Thank you very much. I appreciate that.

Our last witness this afternoon is Richard Winger, ballot access consultant for the Libertarian Party. Mr. Winger, welcome to the committee. We very much appreciate your being here. You may proceed in any way you choose.

TESTIMONY OF RICHARD WINGER, BALLOT ACCESS
CONSULTANT, LIBERTARIAN PARTY

Mr. WINGER. Thank you very much. I appreciate having a chance to express some of the concerns of parties other than the Democratic and Republican Parties.

One of the concerns that just occurred to me a few hours ago is with the June ending of the window. The people who drafted these bills and they all end in June-seem to have forgotten that there have been parties formed as late as June. For instance, in 1912, Teddy Roosevelt got mad at the Republican Convention in June and proceeded to go out and set up a new party, and it qualified in 46 of the 48 States. Then he had his own national convention in August. If that were to happen now, and these bills were in effect, it would be illegal for that new party to go about the business of selecting delegates to its national convention.

A more recent example is in 1948, when Strom Thurmond was upset with the Democratic National Convention in June, in Philadelphia, so he did the same thing. He went out and organized his party in every State in the South, which was the only part of the country he cared about, and had his own convention in Birmingham in July. So they were in the process of selecting delegates and that was after this June cutoff. So I don't see any reason why anyone would be opposed to changing the June to a later date.

I would also just mention that the Republican Party wasn't even founded until July 6, 1854, and it went on in the fall of 1854 elections to elect a plurality of the U.S. House of Representatives. So we know that back then there was no telephone, television, and radio, and yet that fast change managed to occur in those few months. So we should not shut off unexpected developments in the last months of summer.

I would also ask you to exempt minor parties from the starting date, the March date, especially if they are regulating caucuses, because as my written testimony makes clear, I think, there are so many States where a party cannot begin to qualify until after it knows who its Presidential candidate is going to be. Third parties today are just forced to have their national conventions before the window even opens.

This leads to absurd results. The Libertarian Party in 1984 was entitled in four States to have a Presidential primary-North Carolina, Wisconsin, Idaho, and California. But because of the laws of certain other States, we had had our Presidential convention in September 1983. So our Presidential primaries were meaningless. The voters who were registered Libertarian, they got a Presidential primary ballot, but it only had one name on it. It was absurd.

It would be very simple for you to restrict these bills to parties which polled 20 percent of the vote in the previous Presidential election. Or, alternatively, if you incorporated parts of Congressman Conyers' H.R. 2320 into this bill, that would solve the problem in another way.

Thank you very much.

STATEMENT OF RICHARD WINGER, BALLOT ACCESS CONSULTANT, LIBERTARIAN PARTYCOALITION For Free and OPEN ELECTIONS

Mr. Chairman, thank you for the opportunity to appear before your Subcommittee. I am here to describe the impact of H.R. 1380 and H.R. 3542 on political parties other than the Democratic and Republican Parties. I'll begin by using the Libertarian Party as an example.

The Libertarian Party held its 1984 presidential nominating convention on Labor Day weekend, 1983, in New York City. At the time of the convention, the party was a fully qualified party, under state electing law, in these 18 states: Alaska, Arizona, California, Delaware, Hawaii, Idaho, Indiana, Kansas, Maryland, Michigan, Mississippi, Montana, Nevada, New Mexico, North Carolina, South Carolina, Utah and Wisconsin. Delegates to the Libertarian national convention from those states, and all other states as well, had been chosen under party rules during the summer of 1983.

If H.R. 1390 and H.R. 3542 had been in effect during 1983, it would have been illegal for the state Libertarian Parties in those 18 states listed above, to have chosen delegates during 1983. Both bills regulate the dates of caucuses as well as primaries, and both bills apply to all political parties recognized under state law. If Congress should enact a bill such as H.R. 1380 or H.R. 3542, the Libertarian Party and other third parties would be required to substantially change their presidential convention schedules.

Why did the Libertarian Party hold its presidential convention so early? First, a successful national convention can only be held in the summer, when delegates are free to take vacation time from their jobs and children are out of school. Second, the option of holding the presidential convention in the summer of the presidential election year itself is closed, because there are 19 states in which it is legally impossible to begin to qualify the party for the ballot until after the party knows who its nominees are. In 1968 these 19 states, which are at the root of the problem, will require over 250,000 valid signatures, and none of these signatures can be collected until after the party knows who its nominees for president and vice-president will be. Since this terrific petitioning job, from these 19 states, cannot begin until after the party knows who its nominees will be, the Libertarian Party and other third parties must hold their national conventions very, very early.

A list of the 19 states which require third parties to know who their candidates are, before they can begin to petition, is attached.

I hope the dilemma is clear. . . bad state election laws in 19 states force third parties to choose their presidential candidate very early; yet H.R. 1380 and H.R. 3542 would require third parties to choose their presidential candidates rather late. As most of you know, there is a bill by Congressman Conyers, H.R. 2320, which would set a ceiling on the number of signatures that a third party presidential candidate may be required to submit for ballot access. H.R. 2320 would also permit such petitions to be submitted as late as September. If this Subcommittee were to incorporate portions of H.R. 2320 into any bill you write which controls the timing of the presidential nominating process, the problem would be solved. Another solution to the problem would simply be to restrict bills such as H.R. 1380 and H.R. 3542 to political parties which polled, for example, 20% of the vote in the last presidential election.

I thank you for the opportunity to appear before you today.

PRESIDENTIAL ELECTIONS.-STATES WITH NO PROCEDURE FOR A NEW PARTY TO GET ON THE BALLOT UNTIL AFTER IT HAS CHOSEN ITS CANDIDATES

Note on the New Jersey deadline: the 1984 deadline of April 26 was held to be unconstitutionally early in LaRouche v. Burgio, 594 F. Supp 614. The New Jersey legislature's only response to this decision has been to make the deadline even earlier; in 1988 it is April 10. As of May 1, 1986, there is no bill pending in the New Jersey Legislature to make the deadline any later. Also see attached letters from the New Jersey Department of State.

Mr. RICHARD WINGER,

San Francisco, CA.

STATE OF NEW JERSEY,

DEPARTMENT OF STATE ELECTION DIVISION,
Trenton, NJ, February 20, 1985.

DEAR MR. WINGER: Thank you for your recent inquiry concerning the deadline for submission of petitions by independent candidates for President.

As you may know, the Department of State is an executive agency of the State of New Jersey and as such can only implement laws passed by the legislature of this State. The legislature is aware of the outcome of LaRouche vs. Burgio and only the legislature may enact a change to the affected statutes.

Your interest in this matter is appreciated. If there is anything else we can be of help with, feel free to call on us.

DEAR MR. WINGER: Your recent letter to the Attorney General, has been forwarded to this Division for reply.

I have been advised it is anticipated that legislation will be introduced to delay the filing deadline for Independent Presidential candidates.

In New Jersey, the County Clerks draw for ballot position 85 days prior to the general election. It would seem logical that this time period could serve as a guide as to the filing deadline. At this point in time, I can only suggest that we will all have to wait until the legislation is introduced.