As noted earlier, on October 7, the Ohio legislature asked to intervene in Libertarian Party of Ohio v Husted, the ballot access case. Here is the state legislature’s brief, asking the U.S. District Court to let it intervene so that it may appeal the Libertarian Party’s September 7 victory. The legislature says it wants to intervene because the Secretary of State is not appealing.
Here is the Libertarian Party’s response, filed on October 8. The party argues that the U.S. District Court should not permit the legislature to intervene, mostly because the legislature waited an entire month after the party won injunctive relief. As the party’s brief notes, the Ohio Secretary of State had told the press on September 8 that he was not appealing. The party says it wouldn’t be fair to let the legislature intervene now, because the deadline for individual Libertarians to petition onto the Libertarian primary ballot is December 7, 2011. Anyone running in the Libertarian primary for U.S. Senate, or for President, needs 1,000 signatures. Presidential primary candidates cannot begin to petition until they have chosen a slate of delegates.
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Hmmm. Who loses the most votes when there are LP candidates in a gerrymander district —
Donkeys or Elephants ??? Duh.
The fact that the SOS said he would comply with a court order does not mean that he would not appeal. His first filing after the court order was on 10/7.
And from the news accounts it could be that he was referring to the 2011 elections – which of course were never a real issue.
Mark Brown would be the first to recognize that Husted was incapable of fully complying with the court’s order. The previous Secretary of State had run afoul of the Constitution and the courts by attempting to enact legislation by executive edict.
The Libertarians filed suit to keep the Secretary of State from administering the new law. The judge went further, and ordered the State of Ohio to pass a new law, yet did not inform the only persons in Ohio who could pass a new law.
Another of the provisions of the omnibus elections bill would require the legislature to be informed of any legal action regarding elections law, and be given the opportunity to become a party. Had that law been in effect, then the legislature might have been a party all along.
The district judge in Husted does not appear to have a firm grasp of the concept of “combination” as used by the 6th Circuit in Bracewell, which by a 2-1 decision ruled that it was the combination of factors that resulted in a deadline over a year before the election that caused the problem.
Judge Marbley made the bizarre comparison between the 20-day change that the former SOS had tried to enact and would have left the deadline in late November, by ignoring the change in primary date, and focused on the 90-day period between the filing date and the election.
He belittled all the activity that must go on before an election, including sending ballots overseas 45 days before the election date. That leaves 45 days for preparing the ballots and programming voting machines. But in the case of a newly qualified party, there also has to be time for candidates to file for office.
The Ohio Secretary of State had already said he would recognize the minor parties for 2011 before the Judge issued his injunction on September 7, 2011. The Secretary of State had informed the judge that 2011 was all taken care of, before the judge ruled. So the order of Judge Marbley had nothing to do with the 2011 election. Therefore, after the judge ruled, when the Secretary of State said he would not appeal, the Secretary of State was referring to the 2012 election.
Is Bracewell a friend of Ken Blackwell?
Judge Marbley wrote in his temporary injunction that Ohio would have no trouble complying with his order with respect to the 2011 election, and that he would not tell Ohio how to conduct its elections in 2012, but that they would have to comply with the Blackwell, Brunner, and his decision.
If Marbley believed that his order had nothing to do with 2011, his order does not reflect that belief.
We do not know whether a May primary and a 90-day deadline would satisfy the 6th Circuit, moving the effective filing deadline 90 days.
Ohio can easily comply with Brunner, by a Secretary of State not attempting to legislate by edict and not setting a deadline of 100 days before a March primary.
Judge Marbley appears to be totally clueless about how long it takes to put on an election. Ohio could move the primary to August, and if it had a 90-day deadline, he’d belittle it as whining about how much work it takes to put on an election.
He also appears to have projected his personal feelings about the omnibus election bill onto the specific issue that was before his court.
In the newspaper article, Husted did not say that he would not appeal. He said he would comply with the order.
The General Assembly is also intervening to reclaim its prerogative to legislate,
Rudolph Giuliani (of Bracewell and Giuliani) did endorse Ken Blackwell when the latter ran for governor in 2006. Somehow, I was searching for Blackwell and came across Bracewell – and wondered why I had remembered the name of the former SOS as “Blackwell” when it was actually “Bracewell”.
# 3. First, the Constitution’s Election Clauses, which were applied in Brunner, do not limit in any way the Secretary’s authority to regulate state elections. Second, there is a world of difference between the Secretary regulating federal elections, which is prohibited by Brunner, and complying with a federal court order, which is required by the First and Fourteenth Amendments.
Also, it does not follow logically that Ohio must provide primaries for newly-qualifying parties. 42 states have provision for a party to get on a general election ballot (for at least some office) even though the newly-qualifying party has not participated in a primary.
Generally, when a state petition deadline is struck down for being too early, and that state had previously put newly-qualifying parties into a primary, the legislature then generally responds by providing that newly-qualifying parties don’t need their own primary. This has happened in Arkansas, Idaho, Nebraska, Nevada, and Wyoming. Something similar happened in South Carolina, where primaries were always voluntary in any event but in which the state formerly required newly-qualifying parties to hold meetings in the spring.
#6 The federal judge in Brunner said he didn’t know whether the SOS could issue edicts regarding signatures State elections. But since she made the presidential regulations out of whole cloth, it is a bit far fetched that she was merely interpreting the regular qualifications and got tripped up because they applied to both congressional and State elections. I don’t see anything in 3501.05 that would let a SOS make up rules for State elections.
The judge in Brunner should have stopped after determining that the SOS could not legislate.
The judge in Husted didn’t seem to understand the effect of the combination of regulations that the 6th Circuit had cited in its 2-1 decision; and appears to have conflated the referendum campaign with the deadline issue. An appeal would give the 6th Circuit an opportunity to clarify their Blackwell decision. Otherwise the Ohio legislature is left to the trial and error method.
#9, the Ohio legislature doesn’t need trial and error to write a constitutional ballot access law. All it needs to do is have a reasonable petition deadline. Case law for published opinions is unanimous that petitions to recognize a new party can’t be earlier than May of the election year.
#7 The 6th Circuit in Blackwell said that Ohio /may/ require parties to nominate by primary, to qualify in advance, and demonstrate a modicum of support.
South Carolina’s elections laws are such a mess, I’d hardly suggest them as a model for anyone.
If a political party is defined as a “group of voters who nominate candidates”, then it is quite reasonable to ensure that those voters are doing the nominating. This is quite consistent with the republican principles on which our country is based.
I suppose what Ohio could do is require a modest petition (perhaps 1000 signatures Statewide). Voters could affiliate with the party at the primary, and if a sufficient number did so (perhaps 1% of the primary turnout in the relevant district), the party could then nominate by convention.
Once the qualified party had arranged its conventions, the State election officials could send out a notice to voters who had affiliated with the party at the primary.
Or Ohio could switch to a Top 2 Open primary.
#10, Ohio switching to a top two system would not fix the problem, because no top two system involves presidential elections.
There is no reason why the Ohio Libertarian Party couldn’t do its own mail ballot primary. The party knows the names and addresses of its members. That primary need not be financed by taxpayers and need not be simultaneous with the major party primaries. The Socialist Party in 1916 nominated its presidential candidate with an all-mail ballot, in place of a national convention.
#11 The membership fee that the Libertarian Party charges is tantamount to a poll tax if used to control participation in nominating activities for placement on a public ballot.
You don’t think you are going to get Smith v Allwright overturned, do you? And I assume you are not advocating that corporations be able to nominate candidates.
A State has no reason to recognize as a political party any group other than a group of voters who have declared their affiliation with the party. You are mixing up political parties and PACs.
Ohio does not have party affiliation, other than by participation in a primary. It also conducts nonpartisan elections coincident with the partisan primaries (in 2010 there were 885 issue questions in various areas of the State). So there is really minimal cost in permitting voters to declare they are Libertarian and handing them a non-partisan ballot.
There would be relatively modest cost for the county election boards to send out notices of the conventions (certainly less than having an actual primary).
#11 No current Top 2 system involves presidential elections.
Ohio could let all candidates file for an open primary. Any candidate who received 1% of the vote would qualify for the general election. Candidates who failed to qualify, and late comers could qualify by submitting the same number of petitions. Trailing candidates could transfer their support to other candidates.
Political parties could endorse qualifying candidates. If no candidate has a majority at the general election, hold a runoff to determine the winner.
The national political parties would be superfluous and irrelevant to this process.
#12, it is only when governments try to collect poll taxes that they are unconstitutional. Your Republican Party nominated by convention in Virginia for US Senate in 1994 and people had to pay to attend, and that was legal. Morse v Republican Party of Virginia said the Republican Party had to get permission from the US Justice Department before it changed the amount of the fee, but no one said the party couldn’t charge the fee.
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#14 Virginia appears to accept the notion of a political party as the internal organization controlled by the party bosses. You appear to be more comfortable with that construct than I am.