U.S. District Court Hears Georgia Ballot Access Case for Rocky De La Fuente

On the afternoon of Friday, August 26, U.S. District Court Judge Mark Cohen heard oral arguments in De La Fuente v Kemp, n.d., 1:16cv-2937. The issue is the Georgia law that requires independent presidential candidates to notify the state of the names of their presidential elector candidates by July 1, even though the petition is not due until July 12 and even though the names of the electors are on the petition. Furthermore, Georgia doesn’t print the names of presidential elector candidates on the November ballot.

The hearing seemed to go well for De La Fuente. A decision is expected early next week.

Idaho Approves All Four Independent Presidential Candidate Petitions

The Idaho deadline for independent presidential candidates is August 25. Idaho’s Secretary of State has already determined that all four independent presidential petitions have enough valid signatures. The candidates who qualified by petition are:

1. Darrell Castle
2. Rocky De La Fuente
3. Evan McMullin
4. Jill Stein

The ballot-qualified parties in Idaho are Constitution, Democratic, Libertarian, and Republican. The reason Darrell Castle had to submit an independent presidential petition, even though the Constitution Party is on the ballot, is that the officers of the Idaho Constitution Party are angry with Castle, and certified Scott Copeland as the Constitution Party presidential nominee. So there will be two candidates on the November ballot associated with the Constitution Party. Copeland was defeated for the party’s presidential nomination on April 16, 2016. He placed second, with 103.5 votes. Castle won the nomination with 184 votes.

Sixth Circuit Upholds Kentucky’s Failure to Have a Procedure for an Unqualified Party to Become a Qualified Party in Advance of Any Particular Election

On August 26, the Sixth Circuit issued an opinion in Libertarian Party of Kentucky v Grimes, 16-6107. The opinion upholds Kentucky’s failure to have any procedure for a group to transform itself into a qualified party, in advance of any particular election. Kentucky is one of only eleven states that lacks any such procedure. Instead, Kentucky, and the other ten states, only have candidate petitions. A group can’t become a qualified party in Kentucky until after it puts a candidate for President on the ballot who then gets at least 2% of the vote. The other states that lack such a procedure for a group to become qualified in advance of an election are Connecticut, Illinois, Indiana, Iowa, New Jersey, New York, Pennsylvania, Virginia, Washington, and West Virginia.

The case also challenged the Kentucky law (unique in the nation, except for Washington), that confines the vote test to just President.

The 10-page opinion says Kentucky is justified because of the need to prevent a crowded ballot, and then mentions that Florida had voter confusion in November 2000 because there were ten presidential candidates on the ballot. This statement is not true. Palm Beach County, Florida, had voter confusion in 2000 because of poor ballot design, not because there were ten candidates on the ballot. Palm Beach County used punch card ballots in 2000, and the confusion arose from the fact of the “butterfly” design, in which the arrows connecting the name of candidates to the appropriate punch card chad did not line up clearly. Kentucky had eleven presidential candidates in the Democratic presidential primary of 1988, and that did not cause any confusion.

The plaintiffs had complained that there are many one-state parties in the United States who do not run presidential candidates, and they could never achieve party status in Kentucky, no matter how much support they had. But the opinion says that neither of the plaintiff parties, the Libertarian Party and the Constitution Party, have that characteristic, so as to them the problem is just hypothetical. This opens the door for any party that is only organized in Kentucky, and which has no interest in running anyone for President, to file a similar case in the future.

The plaintiffs had complained that if they wanted to run a full slate of candidates for all partisan office, they would need hundreds of thousands of signatures, and would need to ask signers to sign multiple petitions, including six different petitions for the nine statewide offices in gubernatorial years. The opinion says there is no evidence that the plaintiffs would want to run that many nominees. This point contradicts the part of the decision that says the state interest is to keep the ballot from being crowded. The Court contradicts itself when on the one hand it worries about too many names on the ballot, but on the other hand says if there were a party petition procedure in existence, it wouldn’t matter because the parties don’t want to run that many nominees anyway.

The decision is by Judge Danny Boggs, a Reagan appointee, and signed by Judge Gilbert Merritt, a Carter appointee; and Judge David McKeague, a Bush Jr. appointee.

Iowa Approves All Presidential Petitions

The Iowa deadline for anyone to challenge independent petitions, or petitions of the nominees of unqualified parties, has passed. No one challenged any presidential petition. The eight filings are for the Constitution, Green, Legal Marijuana, Libertarian, New Independent, Socialism & Liberation Parties, and for independent presidential candidates Rocky De La Fuente and Evan McMullin.

The New Independent Party is the creation of Lynn Kahn. She did not use the 1,500-petition procedure. Instead she used the 250-person meeting procedure. The Secretary of State permitted her to hold an electronic meeting, which sets a new precedent. Thanks to Bob Johnston for the news.

Arkansas Tells Rocky De La Fuente He Can’t Be on Ballot Because He ran in Democratic Presidential Primary, Ignoring Arkansas 1992 Precedent

On August 9, 2016, Arkansas Director of Elections Leslie Bellamy wrote a letter to Rocky De La Fuente, saying Arkansas Code 7-7-204 states that “a person who files as a candidate for nomination by a political party shall not be eligible to be an independent candidate for the same office at the general election.”

However, this law was in the election code in 1992, and Arkansas let Lyndon LaRouche on the ballot as an independent candidate for President that year, even though he had run in the Arkansas Democratic presidential primary. LaRouche received 14,656 votes in the May 26, 1992 Arkansas Democratic primary. In November 1992 he received 830 votes as an independent presidential candidate in Arkansas.

The Arkansas “sore loser” law existed in 1992. It was then in section 3-105, and said, “A person who has been defeated in a party primary shall not be permitted to file as an independent candidate in the general election for the office for which he was defeated in a party primary.”

Furthermore, for Arkansas to ignore its 1992 precedent and apply the sore loser law to presidential candidates undermines the Arkansas rationale for not allowing write-in votes for President in the general election. Arkansas law 7-5-205 says, “Write-in candidates’ votes – when counted. No votes for write-in candidates in general elections shall be counted or tabulated unless the candidate or his agent shall notify in writing the county board of election commissioners and either the Secretary of State, if a state or district candidate, or a county clerk, if a candidate for a county or township office, of his intention to be a write-in candidate not later than 60 days before the election day.”

Despite that clear law, Arkansas for the last 15 years has interpreted the write-in filing law not to apply to presidential write-ins (even though presidential write-ins were tallied in 1972 for John Schmitz and in 1976 for Eugene McCarthy) because the write-in law is not incorporated into the chapter on presidential elections. But the “sore loser” law also isn’t inside the chapter on presidential elections. Under the Secretary of State’s interpretation of the write-in law, the “sore loser” law, which is also not inside the presidential chapter, doesn’t apply to presidential elections.