Both Pennsylvania and West Virginia require minor party and independent presidential petitions to be submitted on August 1. In both states, one or another minor party is struggling with that deadline.
The Pennsylvania deadline seems very vulnerable to challenge. The legislature has never passed any law saying the deadline is August 1. Instead, in 1984, both the Libertarian Party and the Communist Party sued Pennsylvania over the May deadline. The state gave in and signed a consent decree, promising to accept petitions up until August 1.
But the July 17,2008 court order in Libertarian Party of Ohio v Brunner says that only state legislatures may create ballot access barriers, for president. In the Ohio case, the Secretary of State had created a ballot access barrier, but the Court interpreted Article II, section 1, to mean that only legislatures can do this. That part of the U.S. Constitution says “Each state shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” Applying the same logic to Pennsylvania, the August 1 deadline is void.
No similar argument can be made against the West Virginia deadline of August 1, since it was passed by the legislature. But one can argue that it is too early, because the U.S. Supreme Court said in Anderson v Celebrezze that states may not discriminate against independent and minor party presidential candidates in the matter of timing. The major parties have not chosen their vice-presidential nominees, not even informally, and they won’t formally choose their presidential candidates until August 24-28 (Democrats) and September 1-4 (Republicans). There are two court precedents finding early August deadlines to be unconstitutionally early, one from Rhode Island in 1976 and one giving injunctive relief in Alaska in 1992.
In Ohio, Brunner’s position is not without merit. The Ohio legislature has directed that the electors be chosen by a popular election overseen by the Secretary of State, who has the authority to fill in the details that the legislature has not.
And if Brunner as Secretary of State may not make such provisions, on what basis is a federal court ordering her to include certain party’s candidates on the ballot? Surely the federal court is not the Ohio legislature.
Wouldn’t it be better for the court to simply enjoin Ohio from conducting its presidential election, the governor and Secretary of State from providing any certification or conducting meetings of any supposed electors, and the Congress from counting any electoral votes from Ohio?
The Ohio legislature has delegated certain authority to the Secretary of State, but that delegation is only of certain specified powers, and does not include the power to write ballot access laws for the qualification of new parties. This was all hashed out in the court case. Brunner is not appealing, which tends to show that she doesn’t disagree with Judge Sargus.
Why is there so much secrecy on how many petitions the Libertarian Party turned in for West Virginia ?
We know how many the constitution turned in we know how many Nader turned in. It’s 6:00pm and no word yet
The fact that it was argued before the court suggests that in fact there was merit to Brunner’s case. That she is not appealing does not demonstrate that she agrees with the judge, but rather it is a waste of time given the ultimate authority of the Ohio legislature to set regulations. And even if a higher court ultimately determined that she did have the authority to set regulations, the court might decide that the regulations she set were not constitutional. After all, no one is arguing that the Ohio legislature does not have the authority to set standards for ballot access, yet they were already overturned.
The Secretary of State has the administrative responsibility to determine which candidates names appear on the ballot, at least for Statewide offices, and to transmit that to county election officials. She also has a responsiblity to publicize the standards for ballot access.
If the standards set by legislature are determined by a court to be unconstitutional, then someone has to set a new standard. Otherwise, on what basis would the she determine who was qualified? Why isn’t a press conference in Toledo in October as valid as a petition filing in Columbus with X signatures several months earlier?
If the SoS had accepted the Libertarian petitions, wouldn’t she have been determining the legal standard, in fact “legislating”?
What about Arkansas’ August 1st deadline?
Sorry – typo. August 4th deadline in Arkansas – only three days later than August 1st.
What is all of this nonsense and gobbledygook? Is this new language ? What constitutional right does Brunner have to make any rules,particularly with respect to access to run for office, whatsoever? It is the people who have this right!
The people created the office of Secretary of State. The people elected the Secretary of State.
Who elected the federal district judge?
If the manner which the legislature of the State of Ohio has provided for appointment of presidential electors violates the US Constitution, what business is it of a federal judge to change the manner by which the appointment is conducted?
He should simply have enjoined Ohio from appointing electors, organizing their meeting and their casting of votes, and forbid the Congress from counting any electoral votes.