Federal Election Commission Again Postpones Response in Free Speech v FEC

The Federal Election Commission has now obtained a second postponement of its response in Free Speech v Federal Election Commission, 13-772, which is pending in the U.S. Supreme Court. Originally the FEC’s response was due February 3; then it was put over until March 5; and now it is due April 4. Here is an earlier blog post about that case.

Probably the FEC attorneys find it difficult to respond, not knowing what the U.S. Supreme Court will be saying soon in McCutcheon v FEC, which was argued back on October 8, 2013, and which still doesn’t have a decision. Both cases concern campaign finance. The Court has not yet accepted Free Speech v FEC, and the government’s response, when it is filed, will undoubtedly argue that the case should be rejected.

Pennsylvania Third Circuit Ballot Access Hearing Postponed Two Days Due to Bad Weather

The Pennsylvania minor party ballot access case Constitution Party v Aichele had been set for oral argument in Philadelphia on March 4, but the hearing has been postponed to March 6, Thursday, at 9:30 a.m., due to weather. The issue is the state’s unique system of putting petitioning groups at risk of court costs of up to $110,000 if they submit a petition that lacks enough valid signatures.

Hearing Set in Challenge to Ohio Law That Requires Independent Candidate Petitions to be Completed Within One Year

A U.S. District Court will hold a hearing on March 19 in Duncan v Husted, southern district, 2:13cv-1157. This is a case that challenges the 2013 Ohio law that said independent candidate petitions must be completed within one year. The petitioning candidate sets his own one-year period.

Richard Duncan, the plaintiff, has been an independent candidate for President in each of the last two elections. Both times, he got on the ballot in his home state, Ohio, and did not petition in any other state. Both times, he collected all 5,000 signatures himself. He argues that he intends to do the same in 2016, and that it is a point of pride that he collects all his own signatures. He doesn’t need to spend any money on his petition drives, and he argues that it takes him longer than one year to collect the signatures. If he is forced to complete the petition within one year, he would be required to hire paid circulators, and that would dilute his message that money should not be so important in elections.

The state filed a brief on February 21. The state did not mention any state interest in limiting the petitioning period to one year. Instead, it just said that two U.S. Supreme Court decisions, and one 7th circuit precedent, make it obvious that a one-year petitioning period is constitutional. Ohio cites Jenness v Fortson, the 1971 decision that upheld Georgia’s ballot access laws for independent candidates and the nominees of unqualified parties. Georgia limited petitioning to the period six months before the deadline. But in that case, the Socialist Workers Party candidates (who were the only plaintiffs) did not specifically challenge any details of the petitioning process. Instead, the plaintiffs’ only argument was that they should not be required to submit any petition, because Democrats and Republicans seeking a place on the primary ballot didn’t need any petition.

The state also cites American Party of Texas v White, a 1974 U.S. Supreme Court decision that upheld Texas ballot access laws. But the rationale for the Texas starting date limitation (petitioning couldn’t start until the day after the primary) was that the state didn’t want anyone who had voted in a primary to be able to sign such a petition. No other state forbids primary voters from signing a petition for a new party or an independent candidate, so the Texas rationale doesn’t apply to Ohio or any of the other 48 states.

Finally, the state cites Nader v Keith, a 7th circuit opinion which denied injunctive relief against the Illinois June petition deadline, but did not settle the constitutionality of the deadline. Furthermore, independent candidate Ralph Nader did not complain about Illinois’ 90-day period specifically; he only complained about the deadline.

There are no precedents on the specific point of whether a state can tell a candidate that he or she can choose any petitioning period (as long as it respects the deadline), and yet the candidate must complete the petition in a set number of days.

Duncan also points out that Ohio does not limit the length of the petitioning period for candidates seeking to get on the primary ballot, and argues that the state is violating equal protection. The state responds that independent candidates and candidates in a primary are not similarly situated.

Challenges Filed to Ohio Libertarian Party Primary Petitions for Statewide Office

On March 4, a hearing will be held to determine if the Ohio Libertarian Party primary petitions for Governor, Lieutenant Governor, and Attorney General should be invalidated. Elections officials had already determined the petitions have enough valid signatures. The requirement for these petitions is 500 signatures, and any registered voter who didn’t vote in another party’s primary in 2012 can sign. However, there are restrictions on who can circulate such petitions. Out-of-state circulators can work on these petitions, but if the circulator is an Ohio resident, he or she must not have voted in the primary of another party. See this story. UPDATE: here is another story. The first version of this post said the hearing would be March 3, but the hearing was moved to March 4 due to weather.