1. Reminder of the bad old days leading up to Williams v. Rhodes (1968), in which the George Wallace campaign successfully challenged one of the most draconian ballot access prohibition laws in history– a requirement that would have required a new campaign to collect nearly a half-million valid signatures and to submit them by February before the November election. Buckeye legislators must be slow learners.

2. Yes, in Jenness v Fortson, the U.S. Supreme Court commented on Ohio’s 1968 petition deadline and said that deadline was “unreasonably early.” And that was the same deadline that the legislature has just reinstated, 90 days before the primary. The Ohio primary in 1968 was on May 7.

3. Wow. Looks like the Buckeye state really has got something against third party/independent candidates. Can this be declared unconstitutional based on discrimination? Totally, it is. Hopefully this won’t pass so that third parties don’t have to spend a lot of money fighting this law.

4. But what about the four current minor parties in Ohio? They wouldn’t be ‘new’ parties would they, since we have status already from last year and for this year. ???

5. #2 Jenness v Fortson was commenting on the totality of Ohio law. You are picking one item out of context.

   California (until the Top 2 Open Primary) qualified parties on the basis of voters expressing an intent to participate in the primary. Ohio does not maintain party registration, so requiring expression of intent on the petition is equivalent to the old California law.

   California required qualification 135 days before the primary.

6. #5, that sentence in Jenness v Fortson only dealt with the deadline. The complete sentence is, “Unlike Ohio, Georgia does not fix an unreasonably early filing deadline for candidates not endorsed by established parties.” Whereas the entire decision does comment on the totality of Ohio law, that sentence stands alone. The sentence does not say “an unreasonably early deadline in the context of a high number of signatures.” The sentence says the deadline is unreasonable, period.

   That is why lower courts have been unanimous that early deadlines are unconstitutional, period, regardless of the number of signatures. Especially note a decision in Ohio in 1985 that struck down the independent petition deadline even though the candidate only needed about 50 signatures, and the New Jersey decision that struck down April deadlines even though no plaintiff candidate needed more than 800 signatures, and the likely decision coming in Vermont that June is too early even in though the plaintiff only needed 500 signatures.

7. A February deadline in Ohio is not a good thing because it is freaking cold in Ohio during that time of the year and it is more difficult to gather petition signatures in cold weather.

8. Pingback: Ohio Legislature Expected to Pass Bill on June 23 Moving Petition Deadline for New Parties to February | ThirdPartyPolitics.us

9. #6 The paragraph reads:

   “But the Williams case, it is clear, presented a statutory scheme vastly different from the one before us here. Unlike Ohio, Georgia freely provides for write-in votes. Unlike Ohio, Georgia does not require every candidate to be the nominee of a political party, but fully recognizes independent candidacies. Unlike Ohio, Georgia does not fix an unreasonably early filing deadline for candidates not endorsed by established parties. Unlike Ohio, Georgia does not impose upon a small party or a new party the Procrustean requirement of establishing elaborate primary election machinery. Finally, and in sum, Georgia’s election laws, unlike Ohio’s, do not operate to freeze the political status quo. In this setting we cannot say that Georgia’s 5% petition requirement violates the Constitution.”

   1) Does Ohio permit independent candidates?

   2) Does Ohio permit write-in votes?

   3) Is 1% less than 15%, about the same as 15%, or by more than a magnitude less than 1%.

   4) Does Ohio conduct the primary for all parties?

   5) Does Ohio provide a simplified process for minor and intermediate parties, for example replacing a withdrawing candidates?

   You didn’t address the comparison of Ohio to California (prior to the Top 2 Open Primary reform).

10. #9, your quoting the entire paragraph strengthens my argument. When the Jenness decision mentioned write-ins, it didn’t comment on the constitutionality of banning write-ins. When the Jenness decision mentioned Ohio’s requirement for party structure, again it didn’t say anything about the constitutionality of that requirement. But when it mentioned the deadline, it did comment. It said a petition deadline that early is “unreasonable”. An “unreasonable” restriction cannot even pass the “rational basis” test. Justice Potter, who wrote Jenness, might have just mentioned the deadline difference between Georgia and Ohio without commenting, but he chose to say that a February petition deadline is “unreasonable”.

11. How come NO mention of Brown v. Bd of Ed 1954–
    in both Williams v. Rhodes 1968 and Jenness 1971 ???

    Could it be due to having MORON ballot access lawyers and even worse party hack robot SCOTUS folks — de facto maintaining the 2 party oligarchy ???

12. Justice Stewart may just have liked the cadence between “unlike” and “unreasonable”. What other adjective could he have used?

    “somewhat”?

    The fact that Hawaii had a late primary and filing deadline was a consideration in upholding the ban on write-in voting Takashi v Burdick. The California Supreme Court used a similar rationale in Edelstein, where the candidates for the runoff were selected in the general election, and one of them was a write-in candidate.

    It was the totality of circumstances that the Supreme Court found fault with in Williams v Rhodes. You are taking it out of context when the contrasts between Ohio and Georgia were made in another case.

    If the relatively earlier filing deadline were sufficient to make the Ohio scheme unconstitutional, it would have been mentioned first. Instead, it was listed third.

    And still no comments from you on the old system used in California that you a working to reinstitute.

13. #12, George Wallace and his American Independent Party would have been on the 1968 Ohio ballot without a lawsuit, if Ohio had had a reasonable petition deadline for new parties. The American Independent Party did collect enough valid signatures to qualify itself; it’s just that the signatures were not turned in until July, and the law required them by February.

    You are mistaken if you think I have been working to restore California ballot access laws to the way they were before Prop. 14. I have been fighting since 1965 for a good California ballot access law. California ballot access laws have been wretched ever since 1937. California bills that I wrote were introduced in 1967, 1977, 1979, 1987, and 1994, but none of them passed.

14. Doesn’t Ohio have a later deadline for independent presidential candidates, which they didn’t have in 1968. American Party of Texas v White said that it is “too plain for argument” that a State may require parties to nominate candidates for office in a public process open to those who choose to affiliate with the party. It certainly didn’t say that Texas had to let new parties nominate by convention. It said it was OK to let some parties nominate by convention and others to nominate by primary. It is certainly OK if Ohio requires all parties to nominate by primary, to demonstrate a modicum of support, and to demonstrate that support in time that the primary may be conducted.

    And the system in Ohio is quite similar to that in California (before the Open Primary reform), except for the fact that California has party registration.

    You are a plaintiff in a lawsuit that seeks an injunction against the Top 2 Open Primary reform. Has the Secretary of State ever explained her interpretation of the law? She appears to be interpreting the law based not on what the law actually says, but what she considers to be the rationale (eg ballot confusion, modicum of support).

    Your lawyer uses an extremely convoluted interpretation, and the SOS just says that the plaintiff agrees with them, but that doesn’t mean that they she adopts Dutta’s interpretation.

    The Secretary of State does not have the authority to legislate, and her interpretation of the law must comply with what the law says and the California constitution. It is quite clear that the legislature adopted a system of disclosure, rather than one of regulation with regard to party affiliation of candidates, but the SOS appears to be still expecting a rationale for a regulatory system.

    It is totally bizarre that Dutta would think that the write-in provision which is literally incomprehensible would not be severable. Daniel Frederick would have been better off challenging the write-in provision directly on due process grounds that the provision is literally incomprehensible and inconsistent with other statutory provisions. It is like the cartoon of the Foggy Bottom bureaucrat and the General pointing to a large globe, and exclaiming, “we have been sending foreign aid to a booger!”. You are trying to make a typo a constitutional issue in 5 different courts.

    So you have one issue which you are not challenging on the basis that it should be challenged (ie misinterpretation of statute by the SOS), and another minor issue that can be addressed by severing it (or a simple amendment of the law).

    In the 4 special elections conducted under the Top 2 Open primary reform there have been 5 candidates not affiliated with a qualified party, compared with 4 candidates in the 41 prior special elections. No doubt this is due to greatly reduced ballot access barriers.

    The number of signatures to qualify for the ballot has been reduced from 10 to 15,000 to 40 and from 100,000+ to 60. You have won! Declare Victory!

    We have seen in Louisiana where the presence of independent legislators (due to the Open Primary) has resulted in a change to the law, so that they can be identified as “Independent” on the ballot. There is no reason that California could not permit a candidate who has no party preference on his voter registration listed as “Independent” or “Non-Affiliated” or “Non-Partisan” or “No Party Preference” or ” ” as their discretion.

15. #14, the U.S. Supreme Court in American Party of Texas v White was a case in which the American Party complained that Texas would not give it its own primary. There was no plaintiff political party in that case asking that it be relieved from nominating by primary and seeking the right to nominate by convention. So the sentence you quoted is dicta. The Court was not deciding whether parties have a right to demand that they be allowed to nominate by convention.

    Gautam Dutta, the attorney for Chamness v Bowen and Field v Bowen, has never asserted that the California restriction on counting write-ins is not severable.

    In Storer v Brown, the US Supreme Court said that states must have adequate and constitutional laws for both independent candidates, and new/minor parties. A good law for one type of candidate does not excuse a state from not having a good law for the other type of candidate. So the fact that Ohio has an independent presidential petition deadline in August does not excuse Ohio from having a fair petition deadline for new parties.

16. #15 It is a rational standard that members of any party be permitted to participate in the nomination of candidates of their party. Those who are absent from the vicinity of their residence, are disabled, are incarcerated, or who are employed or attending school may not be able to attend a meeting at a set time, while they may be able to vote early or absentee in a primary election.

    See III.G. SB 6’s Unconstitutional Provisions Are Not Severable of your lawsuit before the San Francisco Superior Court. Besides there is nothing in SB 6 that bars counting of write-in votes. It is the write-in candidates who may not be counted.

    Parties that are late starting may use the independent candidate procedure, especially since they are unlikely to have a full slate of candidates or even run as write-in candidates,

    Just because a State has not adopted the Open Primary system does not necessarily mean that their election system is unconstitutional. But a key feature is that they treat all candidates equally.

17. #16, Gautam Dutta argues that the California party label law can not be severed. He does not make the same argument about the write-in counting.

    No one in Ohio or anywhere is arguing against primaries for new parties per se. We are arguing that early petition deadlines are unconstitutional. If Ohio or any state wants to hold a primary for newly-qualifying parties, such a state is free to hold such a primary for that party later in the year, so that the voters get the benefit both of a late petition deadline and a primary for the new party, if that is what is considered good policy.

    After all, the major party presidential conventions have never been simultaneous. Why should all parties in a given state necessarily have simultaneous primaries?

    The Republican Party was formed on July 6, 1854. Would you argue for a policy of prohibiting the Republican Party in 1854 from being able to contest the 1854 election?

18. #16 In the Superior Court complaint, Dutta argues that the write-in voting ban violates Article 2 Section 2.5 of the California constitution; the free speech clauses of the California constitution and the 1st Amendment; the Due Process clauses of the US and California constitutions.

    In Section G he argues that none of its (SB 6) unconstitutional provisions are severable. He does then go on to make a specific argument that the legislature would not have enacted the alleged party label restriction but for the fact that the legislature was implementing Proposition 14.

    But I would still interpret his use of none to apply to mean “neither the the write-in provision or the party preference provision”.

    It is rational for Ohio to require primaries for all parties. It is rational for those primaries to be held at the same time, particularly in a State like Ohio where voter affiliation is not a permanent affliction. It is rational for Ohio to require qualification prior to the primaries. Late organizing candidates may run as independents. If there is anything unconstitutional it would be the early primary, which restricts the voters of Ohio from choosing their representatives on the date set by Congress for that purpose.

    There were actually very few “Republican” candidates in the 1854 elections (and none in the 1855 elections where about 1/3 of the representatives to the 34th Congress were elected). Congress did not meet until December 1855, by which other representatives joined in what might be styled the Republican caucus.

    Most of the “Republican” candidates in Illinois were “Whig” incumbents. If they had been nominated in the Whig primary in February 1854, they would probably have had no problem running as Whigs in November (Illinois unlike most States, did have a November election).

    And at that time, the elections were actually more like the Open Primary where a voter could vote for any candidate. While Ohio would be better off with an Open Primary, that does not mean that partisan primaries are unconstitutional, just bad policy.

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