On May 13, the Alabama Attorney General filed a new brief in Shugart v Chapman, the pending federal case that challenges the number of signatures needed for an independent candidate for U.S. House. Alabama is the only state in which an independent candidate for U.S. House needs more signatures than an independent candidate for president. In 1979 the U.S. Supreme Court ruled in Illinois State Board of Elections v Socialist Workers Party that states can’t require more signatures for an office encompassing just part of the state, than it requires for statewide office.
The new brief says that the 1979 precedent applied strict scrutiny, but that the U.S. Supreme Court no longer uses the strict scrutiny test for ballot access. However, in 1992 (the last time the U.S. Supreme Court discussed this matter) the Court said strict scrutiny still applies to discriminatory ballot access laws. The new Alabama brief does not discuss the 1992 case, which is called Burdick v Takushi.
Furthermore, the Alabama law doesn’t even pass the rational basis test. It is not rational to require an independent candidate for the U.S. House to get more signatures than the state requires for an independent candidate for president. If 5,000 signatures is enough to keep the presidential ballot uncluttered (and it is), why require an independent candidate for one of the seven U.S. House districts to get 6,100 signatures?
If the Attorney General can file a new brief, why could Shugart’s attorney not also file one asking that the Court look at the option of paying a filing fee in lieu of the signatures? I’m not an attorney and obviously do not know the procedures for such cases. But this should have been one of the points brought up in the original filing.
I’m still afraid (since 5,000 signatures for President is low compared to states such as Oklahoma) the Court could rule to the effect that the State may raise the number of signatures for President so that Shugart’s argument would then become moot.
Or, the Court could rule that the current law in Alabama that requires 3% of the voters of the jurisdiction to sign petitions for independent candidates could also apply to Presidential candidates. This too would make the Shugart argument moot.
Sometimes, the way these suits are worded can boomerang against the plantiff. Let us pray this does not happen here.