On February 3, the Rhode Island chapter of the American Civil Liberties Union filed a federal lawsuit on behalf of the Moderate Party, a party that exists only in Rhode Island. It challenges one restriction on petitioning to get a new party on the ballot. That restriction makes it illegal to circulate that petition in an odd year. The case is Block v Mollis, 09-047.
The procedure to qualify a new party by petition has existed in Rhode Island since 1994, and it has never been used. It requires signatures of 5% of the last vote cast, and also says the petition can’t be circulated until January 1 of the election year. There seems to be no state interest in stopping a group from circulating the petition in an odd year.
There are few precedents on this issue. The U.S. Supreme Court has seemed to approve of short petitioning windows for petitions that name candidates, but the only case in the U.S. Supreme Court concerning a party petition that had a restriction on when the petition could start to circulate was American Party of Texas v White. The Court upheld the Texas procedure, which doesn’t permit a group to circulate its party petition until primary day. However, the state interest in that start restriction was that the petition could not be signed by voters who had voted in the primary. Neither Rhode Island nor any other state except Texas has a “primary screenout” for petitions to create a new party, so the Texas precedent shouldn’t apply to Rhode Island. Also, the plaintiffs in Texas weren’t complaining about the start date in any event.
Also, Texas special elections were always non-partisan, so if an odd year election were held, it was irrelevant whether a party could petition in that year. Rhode Island special elections are partisan, so it is rational that a new party would want to qualify (or be qualified) in an odd year.
Separate is NOT equal.
Brown v. Bd of Ed 1954 — regardless of the armies of MORONS involved in hundreds of screwed up ballot access cases since 1968 — 41 years and counting.
Texas does not provide for parties to be created by petition.
Existing parties nominate either by primary or by convention, depending on their past electoral performance (large parties are required to nominate by primaries; small parties are required to nominate by convention; intermediate-sized parties have a choice.)
All parties are required to hold conventions, beginning with precinct conventions, even if they are not used for the purpose of nomination. The precinct conventions are held on the night of the primary election.
New parties qualify based on having a sufficient number of persons attending their precinct conventions. What Richard Winger refers to as a screenout, is simply a requirement that a voter only participate in the nominating activities of a single party.
After the primaries or conventions, voters may still affiliate with a political party, so long as they have not affiliated with another party that same election year. In the case of new parties, this affiliation is done by signing a petition, and these late affiliation can be used to qualify the nominees chosen by the party conventions.
It is unremarkable that affiliation with a party is restricted to times when such affiliation has any legal consequences, which is around the time of the primaries.