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LPF V. FEC (20-649) Brief of Amicus Curiae Fairvote in Support Of No. 20-649 In the Supreme Court of the United States LEVEL THE PLAYING FIELD, PETER ACKERMAN, GREEN PARTY OF THE UNITED STATES, and LIBERTARIAN NATIONAL COMMITTEE, INC., Petitioners, v. FEDERAL ELECTION COMMISSION, Respondent. On Petition for Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit BRIEF OF AMICUS CURIAE FAIRVOTE IN SUPPORT OF PETITIONERS ANDREW S. PENROSE WILLIAM P. TEDARDS, JR. FAIRVOTE Counsel of Record 6930 Carroll Avenue, 1101 30th Street, NW, Suite 240 Suite 500 Takoma Park, MD 20912 Washington, DC 20007 (301) 270-4616 (202) 744-1214 [email protected] [email protected] Counsel for Amicus Curiae FairVote December 14, 2020 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES . iii INTEREST OF AMICUS CURIAE . 1 SUMMARY OF ARGUMENT . 2 Exclusion of Non-Major Party Candidates From the CPD Debates . 3 ARGUMENT . 6 I. THE CPD OPERATES AS A PARTISAN ORGANIZATION UNDER THE EXPRESS DIRECTION OF THE MAJOR PARTY PRESIDENTIAL CAMPAIGNS, IN CONTRAVENTION OF 11 C.F.R. § 110.13(a)(1). 6 The MOU Eliminates Any Doubt That the CPD Operates as a Partisan Organization . 9 II. THE 15% POLLING REQUIREMENT, AS APPLIED BY THE CPD TO FREEZE THE POLITICAL STATUS QUO, IS NOT AN “OBJECTIVE” STANDARD WITHIN THE MEANING OF 11 C.F.R. § 110.13(c) . 10 A. The 15% Polling Requirement Freezes the Political Status Quo . 11 ii B. Polling Data Is Increasingly Unreliable . 13 C. The 15% Polling Requirement is Not in Accord With Debate Inclusion Standards in the U.S. or Abroad . 20 CONCLUSION . 25 iii TABLE OF AUTHORITIES Page CASES Anderson v. Celebrezze, 460 U.S. 780 (1983) . 12 Burdick v. Takushi, 504 U.S. 428 (1992) . 12 Jenness v. Fortson, 403 U.S. 431 (1971) . 11 Storer v. Brown, 415 U.S. 724 (1974) . 10 STATUTES ARIZ. REV. STAT. ANN. § 16-956(A)(2) (2011) . 22 Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 (1991) . 17 REGULATIONS 11 C.F.R. § 110.13(a)(1) . 3, 6, 9 11 C.F.R. § 110.13(c) . 1, 5, 10 OTHER AUTHORITIES Articles Andrew Mercer, Claudia Deane and Kyley McGeeney, Why 2016 election polls missed their mark, PEW RESEARCH CENTER, Nov. 9, 2016, iv https://www.pewresearch.org/fact-tank/2016/11/09/ why-2016-election-polls-missed-their-mark/. 18 Andrew Prokop and Christina Animashaun, Elizabeth Warren leads Joe Biden in ranked-choice poll, VOX, Sep. 12, 2019, https://www.vox.com/2019/9/12/20860985/poll-democ ratic-primary-ranked-choice-warren-biden. 13 Carl Bialik, Why the Polls Missed Bernie Sanders Michigan Upset, FIVETHIRTYEIGHT, Mar. 9, 2016, http://fivethirtyeight.com/features/why-the-polls-mis sed-bernie-sanders-michigan-upset/ . 18 Cliff Zukin, What’s the Matter With Polling?, THE N EW YO RK T I MES , June 20, 20 1 5 , http://www.nytimes.com/2015/06/21/opinion/sunday/ whats-the-matter-with-polling.html . 19 Dan Balz, The debate over debates: Why should polls pick winners and losers?, THE WASHINGTON POST, Nov. 7, 2015, https://www.washingtonpost.com/politics/the-debate- over-debates-why-should-polls-pick-winners-and-lose rs/2015/11/07/1e107b86-84d7-11e5-9afb-0c971f713d0 c_story.html . 14 Danielle Kurtzleben, 4 Possible Reasons The Polls Got It So Wrong This Year, NPR, Nov. 14, 2016, https://www.npr.org/2016/11/14/502014643/4-possibl e-reasons-the-polls-got-it-so-wrong-this-year . 18 Gloria Dickie, Why Polls Were Mostly Wrong, SCIENTIFIC AMERICAN, Nov. 13, 2020, https://www.scientificamerican.com/article/why-polls v -were-mostly-wrong/. 19-20 Jill Lepore, Politics and the New Machine, THE NEW YORKER, Nov. 16, 2015, http://www.newyorker.com/magazine/2015/11/16/poli tics-and-the-new-machine . 16-17, 22 Lance Lambert, The 2020 elections polling errors are eerily similar to four years ago, FORTUNE, Dec 1, 2020, https://fortune.com/2020/12/01/polling-fivethirtyeight -nate-silver-2020-election-errors/ . 20 Larry Diamond, Ending the Presidential-Debate Duopoly, THE ATLANTIC, May 8, 2015, http://www.theatlantic.com/politics/archive/2015/05/ ending-the-presidential-debate-duopoly/392480 . 25 Leaders’ debate: ICM/Guardian poll puts Miliband ahead - just, THE GUARDIAN, April 2, 2015, http://www.theguardian.com/politics/blog/live/2015/a pr/02/leaders-debate-cameron-and-miliband-go-head- to-head-with-other-parties-live . 23 Michael Barone, Why Political Polls Are So Often Wrong, THE WALL STREET JOURNAL, Nov. 11, 2015, http://www.wsj.com/articles/why-political-polls-are-s o-often-wrong-1447285797. 19 Michael W. Link, et al., Reaching the U.S. Cell Phone Generation, 71 PUBLIC OPIN. Q. 814 (2007) . 16 vi Nate Cohn, A 2016 Review: Why Key State Polls Were Wrong About Trump, THE NEW YORK TIMES, May 31, 2017, https://www.nytimes.com/2017/05/31/upshot/a-2016- review-why-key-state-polls-were-wrong-about-trump .html . 17-18 Nate Silver, The Polls Weren’t Great. But That’s Pretty Normal, FIVETHIRTYEIGHT, Nov. 11, 2020, https://fivethirtyeight.com/features/the-polls-werent- great-but-thats-pretty-normal/ . 20 Nick Anstead, We need to look at other parliamentary democracies for ideas about how to run televised debates, MEDIA POLICY PROJECT BLOG, THE LONDON SCHOOL OF ECONOMICS AND POLITICAL SCIENCE, Oct. 15, 2014, http://blogs.lse.ac.uk/medialse/2014/10/15/we-need-to -look-at-other-parliamentary-democracies-for-ideas- about-how-to-run-televised-debates/ . 23 Paul Merrill, Maine governor hopefuls face off in first debate, WMTW NEWS 8, Oct. 8, 2014, http://www.wmtw.com/news/maine-governor-hopeful s-face-off-in-first-debate/29007466 . 21 POLITICO, Democratic primary polls: Who’s ahead in the 2020 race?, https://www.politico.com/2020-election/democratic-pr esidential-candidates/polls/ . 13 The problem with polls, THE WEEK, April 10, 2016, http://theweek.com/articles/617109/problem-polls . 19 vii Ryan Heath, “Worst presidential debate in history”: Foreigners recoil at Trump and Biden’s prime-time brawl, POLITICO, Sept. 9, 2020, https://www.politico.com/news/2020/09/30/the-worst- presidential-debate-in-history-423765 . 24-25 Television debates, ACE, http://aceproject.org/epic-en/CDTable?view=country &question=ME059 . 22 What Is Public Opinion Polling and Why Is It Important?, GALLUP WORLD POLL (2007), http://media.gallup.com/muslimwestfacts/PDF/Pollin gAndHowToUseItR1drevENG.pdf . 15 Reports Nick Anstead, Televised Debates in Parliamentary Democracies, MEDIA POLICY PROJECT, THE LONDON SCHOOL OF ECONOMICS AND POLITICAL SCIENCE, 10–11 (January, 2015) . 23 P a r t i e s a n d C a n d i d a t e s , T H E A C E ENCYCLOPAEDIA, ACE, 2d edition, 2012, http://aceproject.org/ace-en/topics/pc/pcc/pcc07. 22 Polling Fundamentals - Total Survey Error, ROPER CENTER, CORNELL UNIVERSITY, https://ropercenter.cornell.edu/polling-and-public-opi nion/polling-fundamentals. 16, 17 White House 2016: General Election, POLLINGREPORT.COM, http://www.pollingreport.com/wh16gen.htm. 15-16 viii Internet Sources 2004 U.S. House of Representatives race in Vermont (Democratic Candidate, 7.1%), 2004 U.S. House General Election, VERMONT SECRETARY OF STATE, Election Archives, https://electionarchive.vermont.gov/elections/view/75 532. 14 2006 U.S. Senate race in Connecticut (Republican Candidate, 9.6%), Official Election Results For United States Senate, 2006 U.S. Senate Campaigns, FEDERAL ELECTION COMMISSION, https://www.fec.gov/resources/cms-content/document s/2006senate.pdf. 14-15 2010 Governor election in Colorado (Republican candidate, 11.1%) - Colorado gubernatorial election, 2010, BALLOTPEDIA, https://ballotpedia.org/Colorado_gubernatorial_electi on,_2010 . 15 2012 U.S. Senate race in Maine (Democratic Candidate, 13%), U.S. Senate elections in Maine, 2012, BALLOTPEDIA, https://ballotpedia.org/United_States_Senate_electio ns_in_Maine,_2012. 15 2016 U.S. Senate race in Alaska (Democratic Candidate, 11.62%), U.S. Senate election in Alaska, 2016, BALLOTPEDIA, https://ballotpedia.org/United_States_Senate_electio n_in_Alaska,_2016 . 15 ix 2018 U.S. Senate race in Maine (Democratic Candidate, 10.5%), U.S. Senate election in Maine, 2018, BALLOTPEDIA, https://ballotpedia.org/United_States_Senate_electio n_in_Maine,_2018 . 15 Guidelines for Debates and Forums, LEAGUE OF WOMEN VOTERS WISCONSIN, Revised July 2014, https://web.archive.org/web/20140824043756/http:// www.lwvwi.org/Members/GuidelinesforDebates.aspx . 21 League of Women Voters (LWV) Candidate Forum Guidelines, LEAGUE OF WOMEN VOTERS SAN DIEGO, https://web.archive.org/web/20170302211248/http:// www.lwvsandiego.org/files/CANDIDATE_FORUM_ GUIDELINES.pdf . 21-22 Presidential Candidates, 2020, BALLOTPEDIA, https://ballotpedia.org/Presidential_candidates,_ 2020. 4 Presidential Candidates, 2016, BALLOTPEDIA, https://ballotpedia.org/Presidential_candidates,_ 2016. 4 Presidential election by state, 2016, BALLOTPEDIA, https://ballotpedia.org/Presidential_election_by_ state,_2016 . 4 x Renee Davidson, 4 Reasons You Should Watch a Candidate Debate, LEAGUE OF WOMEN VOTERS, Oct. 7, 2014, http://lwv.org/blog/4-reasons-you-should-watch- candidate-debate . 21 The League of Women Voters and Candidate Debates: A Changing Relationship, LEAGUE OF WOMEN VOTERS, http://lwv.org/content/league-women-voters-and- candidate-debates-changing-relationship . 21 Third Party and independent candidates for the 2012 United States Presidential election, BALLOT ACCESS NEWS, Oct. 1, 2012, Vol. 28, No. 5, http://ballot-access.org/2012/10/27/ballot-access-news- october-2012-print-edition/ and WIKIPEDIA, 2012, https://en.wikipedia.org/wiki/Third_party_and_indep endent_candidates_for_the_2012_United_States_pre sidential_election#Ballot_access_to_270_or_more_ele ctoral_votes. 3, 4 1 INTEREST OF AMICUS CURIAE1 FairVote is a 501(c)(3) non-profit organization incorporated in the District of Columbia, whose mission is to advocate for fairer representation in government through changes in the electoral process. FairVote’s nonpartisan goal, to promote the voices and views of all voters, is grounded in evidence that a more inclusive election process will help create a government that is more representative and effective.
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