Ohio Libertarian Hearing

On September 14, the US Court of Appeals, 6th circuit, heard oral argument in Libertarian Party of Ohio v Blackwell. Only 15 minutes for each side was permitted. The issues are the deadline to submit signatures for a new party (one year before the general election), and whether it violated due process for the state to change the petition form while the drive was in progress, not inform the Libertarian Party of the change, and then reject all 57,000 signatures.

Most of the oral argument was on the deadline issue. The U.S. Supreme Court has ruled against early petition deadlines for minor parties and independent candidates on five occasions, and that court has never upheld any particular deadline. 21 states have had early deadlines thrown out by some level of court. Therefore, since Ohio’s deadline is earlier than any other state’s, and far earlier than any deadline for a new party that has ever been upheld, this should be an easy victory for the Libertarian Party. No published court opinion has ever upheld a petition deadline for a new party earlier than April of the election year.

Judge Richard Griffin, a fairly new Bush Jr. appointee from Michigan, dominated the questioning. His first question was to ask the Libertarian Party’s attorney to acknowledge that in 2000 in California Democratic Party v Jones, the U.S. Supreme Court had said, “It is too plain for argument that a state can require a party to nominate by primary”. The Ohio Libertarian Party had argued that since the reason the deadline is so early (November 2003) is because Ohio insists on providing a primary for new parties, and since Ohio holds its primary in presidential years in March, therefore a way to resolve the conflict between principles is to either let new parties have a later primary, or else let them nominate by convention. Judge Griffin wanted the Libertarian Party’s attorney to agree that Ohio may require a primary. He seemed not to have read the party’s brief, mentioning all the times in the past in Ohio when the state let parties nominate by convention.

Then Judge Griffin started a litany of statements that consumed much of the time allotted to the Libertarian Party’s attorney. The judge asked, didn’t the attorney agree that it probably takes Ohio 30 days to check the signatures? And didn’t he agree that if the party was told it didn’t have enough, and it wanted to sue, that the proceedings in the lower state court would take at least 15 days? And didn’t he agree that if that were appealed to the State Court of Appeals, another 10 days would be consumed? And didn’t he agree that if it were appealed again to the State Supreme Court, that would take another 10 days? And didn’t he agree that it probably takes 30 days to then print the ballots? And didn’t he agree that the absentee ballots must be mailed off 30 days before the election?

This line of questioning was all pointless. It is already the law in Ohio that independent presidential petitions are due 75 days before the general election. Therefore, regardless of the hypothetical list of time periods Judge Griffin presented, we already know that all of the process are successfully handled in Ohio with a deadline 75 days before the general election.

When the attorney for the Libertarian Party pointed out that no court had ever upheld a deadline earlier than April (for a new party petition), Judge Griffin seemed to snort decisively and say, “Well, that won’t stop us; we can be the first” or words to that effect.

It seemed likely that none of the three judges had read the Libertarian Party’s evidence, which illustrated that other courts have struck down early deadlines for new parties, even when those states required primaries for new parties.

Judge Griffin also said that the Libertarian Party, by advocating a later nomination procedure for itself, is demanding special treatment for itself. He seemed not to have read Anderson v Celebrezze, part II, which says that in the matter of petition deadlines, states may discriminate in favor of minor parties and independent candidates, and against the major parties, on the matter of timing. Anderson v Celebrezze said that minor parties and independent candidates play their role best when the voters are free to get them on the ballot, after learning the identity of the major party nominees and platforms. This is so that all voters are able to vote for someone in the general election whom they can support. Anderson v Celebrezze leaned heavily on the analysis of historian Alexander Bickel, who said that the two-party system works better when minor party and independent candidate deadlines are after the major parties have nominated.

The other two judges said little. Judge Eric Clay, a Clinton appointee, wondered if a better solution would be to move the primary, but of course a state is free to set the major party primaries whenever it wants, and the attorney for Ohio said Ohio wants an early presidential primary so that its voters have influence over who gets nominated for the major parties. Judge Julia Gibbons, who was first appointed to the US District Court by Reagan and then elevated to the 6th circuit by our current president, seemed to explore the idea that the case is moot.

A longer and more comprehensive report will be in the October 1 Ballot Access News print edition.

4-way N.J. gubernatorial debate?

New Jersey has a law that the government will sponsor debates for any general election candidate for Governor who has raised at least $300,000. Normally only the Democratic and Republican nominees qualify. This year, 4 candidates qualified, including the Libertarian nominee (Jeff Pawlowski) and an independent candidate, Hector Castillo, whose ballot slogan is “education not corruption.”

The Democratic and Republicans have been invited to debate each other (with no one else participating) by a New Jersey Public TV station. However, it is likely that such a debate is illegal, under the U.S. Supreme Court decision Arkansas Educational TV Commission v Forbes (1998). Although the independent candidate in that case, Ralph Forbes, lost the case, that was only because the evidence showed he had a minimal campaign. The Supreme Court decision makes it clear that if Public TV sponsors a candidate’s debate, it must invite any candidate who is on the ballot and has a real campaign. Obviously, Pawlowski and Castillo do each have a real campaign.

Oklahoma Ballot Access Case Delayed

The Oklahoma Attorney General asked for and received a 3-month delay in the pending Oklahoma ballot access case, which is called Libertarian Political Organization v Clingman. A pre-trial conference scheduled for September 7 was moved to November 30 at the state’s request. This may mean that Oklahoma officials are seriously considering having the legislature improve the law, once the legislature convenes next year.

Ognibene Case Won't be Expedited

On September 7, the 2nd circuit refused to expedite Tom Ognibene’s ballot access case in New York. This is the case that challenges the requirement that candidates for citywide office need 7,500 signatures, to be collected in 37 days. Ognibene, a Republican, would have needed this many registered Republicans to sign, even though there are only 440,000 registered Republicans in New York city. Ulrich v Mane, 05-4560.

The decision not to expedite the case means that the case will be settled after the primary election is over. This should give the judges a better chance to make a reasoned, calm decision, without the pressure of an election looming.

The New York law at issue, as applied to Republicans, is so strict, that the Republican Party has been left with no nominee for two of the three New York city citywide offices this year.

Ognibene Case Won’t be Expedited

On September 7, the 2nd circuit refused to expedite Tom Ognibene’s ballot access case in New York. This is the case that challenges the requirement that candidates for citywide office need 7,500 signatures, to be collected in 37 days. Ognibene, a Republican, would have needed this many registered Republicans to sign, even though there are only 440,000 registered Republicans in New York city. Ulrich v Mane, 05-4560.

The decision not to expedite the case means that the case will be settled after the primary election is over. This should give the judges a better chance to make a reasoned, calm decision, without the pressure of an election looming.

The New York law at issue, as applied to Republicans, is so strict, that the Republican Party has been left with no nominee for two of the three New York city citywide offices this year.

Ohio Initiatives Will Appear on Ballot

Late on Friday, September 9, an Ohio State Court of Appeals refused to remove 4 initiatives from the November 2005 ballot, even though they were placed on the ballot using out-of-state circulators. State ex rel Finan v Blackwell, 05-apd-08-854. The 4 initiatives all relate to election law. One lets anyone vote early; one imposes campaign finance restrictions; one provides for a state board of elections; and one sets up procedures for a nonpartisan body to draw congressional and legislative district boundaries.

The Court did not actually settle the question of whether out-of-state circulators are permitted in Ohio. Instead, the court found procedural flaws in the lawsuit that had been filed to remove the initiatives. Still pending in the US Court of Appeals is Ralph Nader’s challenge to the same restriction. Nader was removed from the Ohio ballot last year because some of his circulators were thought not to live in Ohio.