A U.S. District Court will hold a hearing on March 19 in Duncan v Husted, southern district, 2:13cv-1157. This is a case that challenges the 2013 Ohio law that said independent candidate petitions must be completed within one year. The petitioning candidate sets his own one-year period.

Richard Duncan, the plaintiff, has been an independent candidate for President in each of the last two elections. Both times, he got on the ballot in his home state, Ohio, and did not petition in any other state. Both times, he collected all 5,000 signatures himself. He argues that he intends to do the same in 2016, and that it is a point of pride that he collects all his own signatures. He doesn’t need to spend any money on his petition drives, and he argues that it takes him longer than one year to collect the signatures. If he is forced to complete the petition within one year, he would be required to hire paid circulators, and that would dilute his message that money should not be so important in elections.

The state filed a brief on February 21. The state did not mention any state interest in limiting the petitioning period to one year. Instead, it just said that two U.S. Supreme Court decisions, and one 7th circuit precedent, make it obvious that a one-year petitioning period is constitutional. Ohio cites Jenness v Fortson, the 1971 decision that upheld Georgia’s ballot access laws for independent candidates and the nominees of unqualified parties. Georgia limited petitioning to the period six months before the deadline. But in that case, the Socialist Workers Party candidates (who were the only plaintiffs) did not specifically challenge any details of the petitioning process. Instead, the plaintiffs’ only argument was that they should not be required to submit any petition, because Democrats and Republicans seeking a place on the primary ballot didn’t need any petition.

The state also cites American Party of Texas v White, a 1974 U.S. Supreme Court decision that upheld Texas ballot access laws. But the rationale for the Texas starting date limitation (petitioning couldn’t start until the day after the primary) was that the state didn’t want anyone who had voted in a primary to be able to sign such a petition. No other state forbids primary voters from signing a petition for a new party or an independent candidate, so the Texas rationale doesn’t apply to Ohio or any of the other 48 states.

Finally, the state cites Nader v Keith, a 7th circuit opinion which denied injunctive relief against the Illinois June petition deadline, but did not settle the constitutionality of the deadline. Furthermore, independent candidate Ralph Nader did not complain about Illinois’ 90-day period specifically; he only complained about the deadline.

There are no precedents on the specific point of whether a state can tell a candidate that he or she can choose any petitioning period (as long as it respects the deadline), and yet the candidate must complete the petition in a set number of days.

Duncan also points out that Ohio does not limit the length of the petitioning period for candidates seeking to get on the primary ballot, and argues that the state is violating equal protection. The state responds that independent candidates and candidates in a primary are not similarly situated.