All Briefs Submitted to 9th Circuit in Arizona Ballot Access Case

On January 15, 2007, the last brief was filed in the 9th circuit in Nader v Brewer, 06-16251. Nader challenges Arizona laws that (1) forbid out-of-state residents to circulate an independent presidential petition; (2) require independent presidential candidates to submit petitions no later than early June; (3) depend on a challenge procedure, rather than having elections official themselves check petition validity.

In 1999 the U.S. Supreme Court struck down a Colorado law that made it illegal for states to require initiative petition circulators to be registered voters. That left open the question of whether states may require circulators to be residents of the state. Surprisingly, the Nader Arizona case is the first case to challenge a state residency law in the context of a presidential election. If there is any type of petitioning in which the state interest in having the circulator be a resident of that state is weakest, it surely is petitioning for a presidential candidate. The entire nation elects a president. The U.S. Supreme Court said in 1983 in Anderson v Celebrezze that states have less interest in keeping presidential candidates off their ballots, than in keeping off candidates for lesser office, since a presidential election is the business of the entire nation.

Many courts have struck down laws that require a circulator to be a resident of the particular congressional or legislative district, if the petition is for a candidate for congress or for a state legislature. On the other hand, several courts have upheld laws requiring initiative circulators to be residents of that state.

Arizona says the ban on out-of-state circulators is justified because it may want to subpoena the circulators in case a circulator is charged with fraud. In response, Nader points out that Arizona could simply require circulators to agree in advance to be subject to subpoena power regardless of where they live. Nader also points out that the existing situation leaves circulators free to move out of Arizona when they are done petitioning, and thus the state would still have the subpoena problem for such circulators.

On the matter of the early June petition deadline, the state says the deadline (146 days before the general election) is needed to check the signatures. But the state cannot explain why candidates seeking a place on the September primary ballot face of deadline of only 90 days before the primary. Candidates seeking a spot on the September primary ballot must submit petitions. If the state can check primary petitions with a 90-day deadline, why does it need a 146-day deadline for general election petitions?

The 9th circuit contains nine states, so the ruling in Nader v Brewer will have a big impact. It will be binding on all nine states.

Chair of California State Senate Elections Committee Wants to Move Primary to Early February

California State Senator Ron Calderon says he will introduce a bill on January 23 to move the California presidential primary from June to early February. Calderon is chair of the Senate Elections Committee. Governor Arnold Schwarzenegger says he approves of the idea. Secretary of State Debra Bowen, however, fears that the state’s vote-counting equipment must be revised before the next statewide election and she fears that this work might not be done in time to cope with a February 2008 primary.

A similar bill has already been introduced in the Assembly by Assemblyman George Plescia, a Republican. The bill, AB 157, provides that the primary for office other than president would continue to be in June. Therefore, California would have two primaries in presidential election years. Approximately half the states that hold presidential primaries hold two primaries in presidential election years, and early presidential primary and a much later primary for other office.

Oregon Bills Would Impose "Top-Two" Primary

On January 8, bills were introduced in each house of the Oregon legislature to provide that only the two candidates who received the most votes in the primary could be on the November ballot. The bills would affect all federal and state office except president. They are SB 53 and HB 2061. They appear to be sponsored by the Public Commission on the Oregon Legislature, rather than being sponsored by any particular legislators.

Oregon Bills Would Impose “Top-Two” Primary

On January 8, bills were introduced in each house of the Oregon legislature to provide that only the two candidates who received the most votes in the primary could be on the November ballot. The bills would affect all federal and state office except president. They are SB 53 and HB 2061. They appear to be sponsored by the Public Commission on the Oregon Legislature, rather than being sponsored by any particular legislators.

5 Washington State Senators Introduce Bill to Force Major Parties to Pay for Primaries

On January 10, five Washington State Senators introduced SB 5096, which provides that political parties should pay the administrative costs of their own primaries. The bill’s main author is Republican Bob McCaslin, who has the most seniority of any State Senator. The four co-sponsors are all Democrats: Chris Marr, Tim Sheldon, Brian Hatfield and Marilyn Rasmussen. The bill has a hearing in the Senate Govt. Operations Committee on Thursday, Jan. 25, at 3:30 pm. The bill does not actually give major parties the right to nominate by a means other than primary. If it is to be taken seriously, it needs some amendments.

US Supreme Court Accepts Case on McCain-Feingold Law

As expected, the U.S. Supreme Court has agreed to hear Wisconsin Right to Life v Federal Election Commission. The Court set an expedited briefing schedule, so that oral arguments will be in May or June 2007. This is the case in which the lower court had ruled that the McCain-Feingold law is unconstitutional as applied in certain situations. Specifically, the court below had held that the part of the law banning almost all corporations from paying for broadcasts that mention candidates (within 60 days of an election) is unconstitutional as applied to ads that don’t even hint how someone should vote.