Ballot Access News is edited and published by Richard Winger, the nation's leading expert on ballot access legal issues.


Wisconsin Bill Signed that Clarifies When to Count Write-Ins

On July 2, Wisconsin Governor Scott Walker signed SB 121. Wisconsin already permitted write-ins and already said that they should be counted for candidates who had filed a campaign finance report. But, except for presidential write-ins, the old law did not specify a deadline for such a campaign finance report to be filed. The bill says write-ins shall be counted if the write-in candidate files a campaign finance report by noon on the Friday before the election (however, presidential write-ins already had a write-in filing deadline that is somewhat earlier, and their own rules on filing).

Wisconsin is to be commended for allowing very late filing by write-in candidates. A major purpose of allowing write-in votes is to allow for last-minute unexpected events that might cause the need for late entry of write-in candidates. Yet states like Texas, Florida and Ohio set write-in filing deadlines several months before the election.


Nevada State Court Rules Judicial Recall Petition Has Enough Valid Signatures

On July 2, a Nevada trial court ruled that a petition to recall a particular state judge in Las Vegas has enough valid signatures. The judge who is being recalled will appeal to the State Supreme Court. Nevada recalls for local office require the signatures of 25% of the last vote cast for that office. This is apparently the first judicial recall petition in state history to have enough valid signatures. See this story.


Annette Bosworth Sentenced to Three Years Probation for Petitioning Violation

On July 1, South Dakota Republican candidate Annette Bosworth was sentenced to three years probation, because she left her 2014 ballot access petitions unattended in her medical office. Some of her patients signed the petition. Later she signed off as the circulator. Because she didn’t actually see the signatures being placed on the petition sheet, she now has twelve felonies on her record, but at least she was not sent to prison. See this story. She will appeal.

In some states, there is no requirement that the circulator of a ballot access petition even sign the petition sheet or otherwise identify himself or herself as the circulator.


Sixth Circuit Agrees with U.S. District Court that Two Tennessee Ballot Access Laws are Unconstitutional

On July 2, the Sixth Circuit agreed with a U.S. District Court that two Tennessee ballot access laws are unconstitutional. The Green Party and the Constitution Party had filed a lawsuit on October 10, 2013, against the law on how a party remains on the ballot, and also against the state’s loyalty oath for newly-qualifying political parties. Here is the decision in Green Party of Tennessee v Hargett, 14-5435. It is written by Judge R. Guy Cole, a Clinton appointee, and signed by Judges Deborah L. Cook and Helene N. White, Bush Jr. appointees.

The Tennessee vote test for a party to remain on the ballot is that it poll at least 5% for the office at the top of the ballot (president in presidential years, governor in gubernatorial years). The law is discriminatory, because a newly-qualifying party has to meet the vote test in its first year on the ballot. But an already-established party only has to meet the vote test every two elections.

The Sixth Circuit decision strikes down the vote test on Equal Protection grounds. Tennessee could easily repair this law if it said that newly-qualifying parties also don’t need to meet the vote test in their first election, but that they can meet the vote test in either of the party’s first two elections.

The Sixth Circuit also struck down the old Tennessee law that newly-qualifying parties must file a document saying they don’t advocate the violent overthrow of the government. The state had not tried to defend this law, except to argue that it isn’t enforced. However, the decision says the state “has not explicitly disavowed enforcing the oath in the future.” The U.S. Supreme Court had struck all loyalty oaths for parties in 1974, but some states continue to keep them on the books. These states include California, Illinois, Kansas, and Arizona.

The July 2 decision does not resolve the other Tennessee ballot access case, the law that requires a petition of 2.5% of the last gubernatorial vote for a party to get on the ballot. That case is still in U.S. District Court, and discovery is proceeding. Thanks to Rick Hasen for the link. UPDATE: here is a news story about the decision.


Virginia Republican Party Will Help Local Republican Party Lawsuit Against Law Letting Incumbents Decide How a Party Nominates

Virginia has a unique election law concerning partisan nominations. Virginia lets all qualified parties decide for themselves whether to nominate by primary or convention, yet if an incumbent is running for re-election, he or she can override the party’s decision. If the party wants a primary but the incumbent wants convention instead, the incumbent’s desires override the party’s wishes.

A local unit of the Virginia Republican Party filed a lawsuit against that law earlier this year, but lost the case in U.S. District Court. The party is appealing to the Fourth Circuit. Its brief is due July 8. On June 27, the statewide Virginia Republican Party voted to support the lawsuit by filing an amicus curiae brief on the side of its local group. The case is Adams v Alcorn, 15-1478.


Procedural Victory in Missouri Constitution Party Ballot Access Case

On June 25, U.S. District Court Judge Ronnie L. White issued a procedural ruling in Constitution Party of Missouri v St. Louis County, Missouri, e.d., 4:15cv-207. The ruling denies the government’s motion to dismiss the case.

The lawsuit was filed earlier this year to challenge the county’s charter, which says, “Any vacancy in the County Council shall be filled at the next general election or special election called in accordance with statute. Nominations for election to fill a vacancy shall be made in accordance with statute by the committee men and women of each of the two parties casting the highest vote for governor in the last election whose townships lie in whole or in part within the council districts wherein the vacancy exists.” In other words, in special elections for County Council (which is elected on a partisan basis) the only candidates can be those nominated by the Democratic and Republican Parties.

The county tried to get the lawsuit dismissed on the grounds that the special election is over with and it is very unlikely that there will be another special election in which the Constitution Party wishes to run anyone. The judge said, “There is a reasonable probability that such an opportunity will present itself in the future.” The next stage of the lawsuit will be to decide if the county charter is unconstitutional.