On February 4, U.S. District Court Judge Philip S. Gutierrez, a Bush Jr. appointee, refused to strike down the California residency requirement for circulators of candidate petitions, even though all sides to the lawsuit agree that the law is unconstitutional. Here is the 8-page decision. The Judge said the plaintiffs, who include the Los Angeles County Libertarian Party, a member of the party who wants to circulate a petition outside of his home legislative district, and a candidate, all lack standing, because the Secretary of State has told the court that she will not enforce the requirement.

The plaintiffs pointed out in their last brief that the Secretary of State’s web page for all recent special elections sets forth the residency requirement for circulators, and does not say anywhere on her web page that she doesn’t enforce these laws. By contrast, the Secretary of State’s same web page sets out the duration of residency requirement for candidates for the legislature, but has a footnote saying she won’t enforce that law, which is part of the California Constitution. The judge said, “Just because the Secretary of State has publicly announced that certain election law provisions are, in her view, unconstitutional and will not be enforced, does not suggest that all the other provisions will be enforced.” The case is Libertarian Party of Los Angeles County v Bowen, 2:10-cv-02488. Plaintiffs will appeal to the 9th circuit. The 9th circuit ruled in 1989 that even a voter has standing to challenge a ballot access law, in Erum v Cayetano.