Arizona Supreme Court Upholds Validity of Recall Petition

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On September 13, the Arizona Supreme Court issued a three-sentence order, agreeing with the lower court that the petition to force a recall of Senate President Russell Pearce is valid. The Court said it would issue a full opinion later. Pearce had tried to invalidate the petition. He did not contest the finding that the petition had been signed by enough registered voters. But he argued that the circulators did not complete the certification blank on many of the sheets. The case is Ross v Bennett, cv11-0264-T-AP.

Ohio Bill to Move Primary from March to May

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On September 12, a bill was introduced in the Ohio legislature to move the primary in presidential election years from March to May (in non-presidential years, the Ohio primary is already in May). The bill is SB 217, and it has an urgency clause, so that it can go into effect immediately after it is signed into law.

If this bill passes, it will have no effect on petition deadlines for newly-qualifying parties, because of the court decision earlier this month that the Ohio statutory deadline for new party petitions is too early, whether the primary is in May or March. Under the statutory law, petitions for newly-qualifying parties are due 90 days before the primary.

Another Ohio bill, HB 194, already passed this year, moving the primary in presidential election years from March to May. That is the same omnibus election law bill that is the subject of a referendum petition, so it won’t go into effect in 2012 if the referendum gets enough valid signatures. Because no one can predict what will happen to HB 194, the separate bill to just move the primary was introduced. Thanks to Frontloading HQ for the news.

3rd Circuit Orders Carl Lewis Onto Ballot; Uses Compelling Interest Test

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On September 13, the Third Circuit issued a short order, telling New Jersey’s Secretary of State to list Carl Lewis on the ballot as the Democratic nominee for State Senate, 8th district. He had been kept off the ballot because the state Constitution says no one can run for State Senate who has not lived in New Jersey for four years. The Third Circuit said it will issue a full opinion later. The vote was 2-1.

The order says, “The judgment of the District Court, entered September 7, 2011, is hereby reversed. The District Court incorrectly applied a rational basis standard of review of this as-applied challenge, rather than the stricter compelling state interest standard. See Wellford v Battaglia, 343 F.Supp. 143 (D.Del. 1972), affirmed, 485 F.2d 1151 (3rd Cir. 1973). The State has failed to demonstrate a compelling state interest in the application of this durational residency requirement to this particular candidate. Accordingly, it is hereby ordered that the ballots at issue in this appeal include the name of Appellant. Opinion of the Court to follow.”

Wellford v Battaglia, the precedent the panel depends on, struck down a provision in the city charter of Wilmington, Delaware, which said no one could run for Mayor without having lived in Wilmington for five years. Generally that precedent is considered implicitly overruled by the U.S. Supreme Court’s summary affirmance in Sununu v Stark, in 1975. In Sununu v Stark, the lower 3-judge court had upheld New Hampshire’s 7-year residency requirement in the state to run for State Senate, and the U.S. Supreme Court summarily affirmed it. Also, in 1982, the U.S. Supreme Court, in a full opinion in Clements v Fashing, 457 U.S. 957, said that the right to be a candidate is not fundamental. However, that was a decision with no majority opinion, so it has less influence.

This order is from Judge Thomas Ambro, a Clinton appointee, and Thomas Vanaskie, an Obama appointee. Judge Anthony Scirica, a Reagan appointee, dissented, but did not write anything. Thanks to Rick Hasen for this news.

Pennsylvania Indicts Candidate Who Tried to Fix a Paperwork Glitch on His Candidacy Paperwork

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Anthony Scott tried to get on the Democratic primary ballot in the Pennsylvania May 2011 primary, to run for a local partisan office. He collected signatures, filled out a declaration of candidacy, and also signed his petition in the blank for the candidate’s signature. He took both sets of documents to a notary. Unfortunately, he forgot to sign one of the forms. And the notary public didn’t notice the missing signature, and notarized both documents.

Shortly afterwards, the candidate noticed he hadn’t signed one of the forms, and he signed it. Now he has been indicted for altering an official document after it had been notarized. See this story. He faces a large fine and even the possibility of jail time. Thanks to Mel Kaplan for the link.

Kansas Files Response Brief in Constitution Party Case on Voter Registration Forms

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On September 12, Kansas filed this brief in the 10th circuit, in Constitution Party of Kansas v Biggs, 10-4043. The issue is whether there should be a blank line on voter registration forms, to let Kansas voters register as members of parties that aren’t recognized.

The 10th circuit ruled in 1984, in a Colorado case, that states must let voters register into active minor parties that are not ballot-qualified. Because Kansas is in the 10th circuit, one would think Kansas would have little grounds to continue its policy of no write-in line on the voter registration form in the part of the form that asks voters to list party affiliation. Kansas attempts to defend itself by arguing that the Constitution Party lawsuit demands that the state tally voter registrations for every possible group. The Kansas brief won’t grapple with the Constitution Party’s point that the party has been active in Kansas. It placed its presidential nominee on the ballot in 2004 via the independent petition, and in 2008 it placed its presidential nominee on the Kansas ballot by persuading the ballot-qualified Reform Party to nominate him.

The Kansas brief also says Kansas ballot access is “exceedingly low”, and the Constitution Party should simply qualify itself, if it wishes to let voters register as members. The state’s brief is not accurate. Kansas’ petition to qualify a new party, 2% of the last gubernatorial vote, is so difficult, neither the Green Party nor the Natural Law Party has ever qualified in Kansas. Americans Elect qualified as a party in Kansas this year, but before that, no party had successfully qualified since 1998. The only states with a mandatory party petition in excess of 2% are Alabama, Oklahoma, South Dakota, and Tennessee (“mandatory”, as used in the proceeding sentence, means that the group cannot appear on the November ballot with the party name unless it carries out that party petition).

The Kansas brief presents an incomplete list of court precedents. It mentions the Iowa Socialist Party case, in which the Iowa Socialist Party lost a similar case, but it doesn’t mention that when the Green and Libertarian Parties sued Iowa on the same issue, those parties won the case.