On September 26, the Tenth Circuit held an oral argument in Riddle v Hickenlooper, 13-1108. The hearing went well for the plaintiffs. The issue is whether a state can permit individuals to give $400 to legislative candidates nominated in primaries, but only $200 to legislative candidates who were nominated in minor party conventions, or by petition, or who are write-in candidates. The U.S. District Court had upheld the law. The three judges are Neal Gorsuch, Bobby Baldock, and Robert Bacharach. None of them had previously had a case involving minor party or independent candidates.
The usual reason that they give for different contribution limits for major and minor party candidates is that major party candidates usually need to run in both a primary and in the general election, while minor party candidates are usually nominated by party convention, so the costs involved are much less. And almost without exception, the limits for major party candidates are exactly twice those for minor party candidates, to reflect that reasoning. And write-in candidates, of course, only run in the general.
But this ignores the fact that major party incumbents often run unopposed in the primary. And the advertising that they mail for the primary, and the lawn signs, bumper stickers, etc., that they buy, benefit them in the general election as well.
But independent candidates need to petition to get on the ballot, and that can be as hard — or harder — than winning a primary, depending on the state law. There is no rational reason to lump independents in with minor party candidates.
So, I was wondering how this issue of independent candidates was addressed in this case — they are clearly distinguishable from minor party or write-in candidates.
Does anyone know how (or whether) the plaintiffs addressed this in their filings?
The plaintiffs’ evidence shows that seven-eighths of the time, there is only one person on the primary ballot in legislative races, so the idea that candidates who are nominated by primary “need” more money is a fallacy. In this particular case, the plaintiff-candidate was a write-in candidate, and it is obvious that it takes substantial money to try to win a legislative race as a write-in candidate. At the oral argument, the three judges seemed convinced that the law violates Equal Protection.