The Third Circuit could issue an opinion in Baldwin v Cortes at any time. There will be no oral argument, and the three judges will rule strictly from having read the briefs. Here is the Constitution Party’s opening brief; here is the state’s brief; here is the Constitution Party’s reply brief.
The case had been filed in U.S. District Court on August 29, 2008. It had argued that Article II of the U.S. Constitution requires that ballot access rules for presidential electors are invalid, unless they were passed by a state legislature. Article II says, “Each state shall appoint, in such Manner as the Legislature thereof may direct, a Number of (Presidential) Electors.”
The Pennsylvania petition deadline for minor party and independent candidate petitions, August 1, was never passed by the legislature. The Constitution Party submitted its statewide petition in Pennsylvania in mid-August, but the petition was rejected because it was late. But, the party argues that there is no valid deadline. The U.S. District Court refused any relief so the case is now pending in the 3rd circuit. The three judges on the panel are Thomas Ambro, a Clinton appointee; Jane Roth, a Bush Sr. appointee; and Leonard Garth, a Nixon appointee.
I think that the Constitution Party is making two arguments that contradict each other. On the one hand it is arguing that they should have had the candidates placed on the 2008 ballot; and on the other hand that only the legislature has the authority to direct the manner in which presidential electors are appointed – and the legislature had set a May deadline that the party did not even attempt to comply with.
It would be too much to hope that the US Supreme Court would recognize the contradiction and overturn the 1984 consent decree and simply enjoin Pennsylvania from appointing electors or executing any part of its unlawful scheme.
If the courts had done the same in the 1980’s, I suspect that the Pennsylvania legislature would have crafted a lawful scheme by now. And if not, no matter to worry about.
The Constitution Party isn’t really contradicting itself. It (or any minor party or any independent statewide candidate) could easily win a new lawsuit against the May 2 statutory deadline, if Pennsylvania did revert to that petition deadline. Pennsylvania is in the 3rd circuit and the 3rd circuit already struck down a mid-April deadline for non-presidential minor party and independent candidate petition deadlines, even though New Jersey only requires 800 signatures for statewide candidates, and 100 for U.S. House candidates.
The Constitution Party is arguing that the SOTC didn’t have the authority to extend the 1984 consent decree, and I think implicit is that the SOTC didn’t have the authority to enter into the decree in the first place.
Wasn’t the federal court in 1984 directing the manner by which Pennsylvania appointed its presidential electors?
Federal courts prohibit states from enforcing unconstitutional restrictions. The “natural” state of affairs, one might say, is no deadline and no restriction. It is up to the state to justify its requirements. If it cannot to the satisfaction of the federal Constitution, the restriction cannot be enforced.
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Much love – much love for this. I am going to buy my cousin the Nixon Fluro! I hope he enjoys it.