On May 3, the California Secretary of State released a letter to Americans Elect, which says, “Our office recommends that petition signatures be filed with those (county) officials on or before September 16, 2011.” The letter is referring to the petition to qualify Americans Elect as a new party in California. Furthermore, this part of the letter assumes that AB 80 will pass. AB 80 moves the presidential primary from February 2012 to June 2012. It has already passed the Assembly unanimously.
The letter says that if AB 80 does not pass, “our office recommends that petition signatures be filed with those officials on or before May 25, 2011.”
There are several problems with the Secretary of State’s letter: (1) the letter seems to assume that political parties in California must qualify in time for the presidential primary, as opposed to the primary for other office. But, there is a precedent in California in which a newly qualifying party submitted its petition in time for the direct (non-presidential) primary, but not in time for the presidential primary. That precedent was set by the Liberty Party in 1932, when the California presidential primary was in May but the primary for other office was in August; (2) the California law does not require newly-qualifying parties to submit a petition by any particular date that is earlier than 135 days before the primary. That deadline (assuming AB 80 passes) will be January 22, 2012. There is no authority in California election law for an earlier deadline. When the Secretary of State of Ohio created a deadline for new party petitions by fiat in 2007, a U.S. District Court in Ohio struck down the Ohio Secretary’s deadline on the grounds that the U.S. Constitution’s election clause says only state legislatures may create rules for federal elections; (3) the letter ignores the case law that early petition deadlines for new parties to qualify for the ballot are unconstitutional. Federal and state courts in 15 states have struck down qualifying deadlines for new parties that were earlier than May of the election year. These decision have been based on four U.S. Supreme Court opinions, Williams v Rhodes, Jenness v Fortson, Mandel v Bradley, and Anderson v Celebrezze.
Thanks to Irregular Times for the link to the letter.