On May 14, U.S. District Court Judge Stephen J. Murphy upheld Michigan’s procedure for newly-qualifying parties to get on the ballot, in a case filed by Socialist Party candidate and activist Matt Erard. The case is Erard v Michigan Secretary of State Ruth Johnson, eastern district, 2:12cv-13627. Here is the 24-page opinion.
Erard had complained about the law barring out-of-state residents from working on petitions for a newly-qualifying party, but the opinion construes Michigan’s new law (HB 5152, signed into law on April 3, 2014) to mean that such petitioners can be circulated by out-of-state residents. This conclusion is not completely obvious from the text of the law itself, but of course it is valuable. Erard had complained that even if the new law is read this way, he should still obtain relief because the law gives six months for new parties to complete the petition, but because the deadline this year is July 17, the Socialist Party couldn’t take advantage of the liberalization for the entire six-month petitioning period. The opinion minimizes that point and says the party still has plenty of time.
Erard’s strongest point is that Michigan discriminates against newly-qualifying parties, and in favor of old parties, because old parties only needed 16,083 votes for any statewide candidate to remain on the ballot in the November 2012 election, whereas parties petitioning for 2014 need 32,261 signatures. The U.S. Supreme Court had said in Williams v Rhodes that one reason the Ohio ballot access laws in effect in 1968 were unconstitutional was that old parties needed a 10% vote to remain on, whereas new parties needed 15% to get on. The Michigan decision does not mention that case, Williams v Rhodes. Nor does the Michigan decision mention that in 1972, a 3-judge U.S. District Court in Massachusetts invalidated the Massachusetts law that required a vote of one-tenth of 1% for Governor for a party to remain on, but a 3% petition for a new party to get on.
Erard had shown that the Democratic and Republican Parties of Michigan never had to petition, because they have existed before 1939, and before 1939, no party in Michigan ever needed a petition to get on. New parties merely had to hold nominating conventions and apply. The decision says that Erard did not prove this, but he did cite the 1939 law, and the judge appears to have overlooked that part of Erard’s brief.
On page 13, the opinion erroneously says the vote test for a party to remain on is 1% of the last vote for Secretary of State, when actually it is 1% of the winning candidate’s vote for Secretary of State. Erard will ask for reconsideration, based partly on this error in the decision, and on the error in the decision that says Erard did not prove his contention that the two major parties never had to petition.