Arkansas Files Brief in Libertarian Party Case Challenging the 3% Petition Enacted This Year

On May 24, Arkansas filed this brief in Libertarian Party of Arkansas v Thurston, e.d., 4:19cv-214.  This is the case in which the party challenges the new ballot access law passed this year, raising the petition for newly qualifying parties from 10,000 to 3% of the last gubernatorial vote.

The state argues that because the Eighth Circuit in 2010 upheld the 3% vote test for a party to remain on, therefore the petition requirement of 3% must also be constitutional.  But the reason the Eighth Circuit upheld the 3% vote test is that in practice, at the time, the 3% vote test had not kept the plaintiff Green Party from appearing on the ballot as a qualified party in all elections 2006 through the date of that opinion.  Therefore, the court ruled that the 3% vote test was not a severe burden.  The Arkansas vote test, by itself, did not keep any party off the ballot.

The state’s brief does not mention the fact that in all the years in the past when Arkansas had a party petition in excess of 10,000 signatures, no party ever successfully used that petition procedure.  The state does not mention the U.S. Supreme Court opinions that say that a ballot access law is too difficult if no one ever uses it.

No federal court has ever struck down a vote test on the grounds that it was too high.  But many federal courts have struck down petition requirements for a party or a statewide independent to get on the ballot, including courts in Arkansas itself, Georgia, Idaho, Illinois, Kansas, Maryland, Michigan, Mississippi, Nebraska, North Carolina, North Dakota, Ohio, and South Dakota.

U.S. Supreme Court Grants Stay in Gerrymandering Cases in Michigan and Ohio

On May 24, the U.S. Supreme Court issued a one-sentence order in the Michigan and Ohio gerrymandering cases.  For the time being, the two states do not need to start redrawing their U.S. House districts.  The decision is unanimous.

By the end of June, the two U.S. Supreme Court gerrymandering decisions from Maryland and North Carolina will be released, and then the situation regarding Michigan and Ohio might change.

California Assembly Passes Bill to Make it More Difficult to Put Initiatives on the Ballot

On May 23, the California Assembly passed AB 1451 by 56-19.  It makes it illegal to pay circulators on a per-signature basis.  It also says statewide initiatives cannot qualify unless at least 10% of the required signatures were collected by volunteers.

The California League of Women Voters opposed this measure.  A similar measure was vetoed by former Governor Jerry Brown in the past, but he is no longer Governor.

Second Circuit Says New York Libertarian Lawsuit on Out-of-State Petitioners is Moot

On May 7, the Second Circuit issued a one-paragraph order in Redpath v Spano, 18-2089.  The issue in the case is New York state’s ban on out-of-state circulators.  The U.S. District Court had struck down that ban.  The case had been filed by the Libertarian Party.

While the state’s appeal was pending, the November 2018 election was held and the party became ballot-qualified in New York for the first time ever.  Then the state argued that the case is moot.  The Second Circuit agreed that the case is moot, and wrote, “The district court’s judgment is vacated.”  This means that neither side won the case, and the issue is still unresolved.  The Second Circuit did not allow an oral argument.