On October 4, U.S. District Court Judge Michael W. Fitzgerald, an Obama appointee, upheld California’s petition requirement for independent presidential candidates, which is 1% of the number of registered voters. De La Fuente v Padilla, c.d., 2:16cv-3242. Here is the 15-page single spaced opinion.

The opinion ignores fundamental teachings of two U.S. Supreme Court decisions, Storer v Brown, and Anderson v Celebrezze. It also has factual errors relating to the history of California’s independent experience with past independent presidential elections, and factual errors relating to the laws of other states.

The decision says that Arizona’s petition is 3% of the number of registered voters, but actually it is 3% of the number of independent registered voters. It says that Oklahoma’s petition is 3% of the last vote cast, but actually Oklahoma now requires no signatures if the candidate pays a filing fee. It says Pennsylvania’s petition is 2% of the last vote cast, but actually it is 5,000 signatures. It says Maryland has a petition of 1% of the number of registered voters, but actually it is exactly 10,000 signatures (about one-fourth of 1% of the number of registered voters). It says Minnesota’s petition is 1% of the last vote cast, but actually it is 2,000 signatures (less than one-twentieth of the number of registered voters).

The decision notes that no independent presidential petition has succeeded in California since 1992, but says it doesn’t matter because minor parties are always on the ballot for president in California. This contradicts Storer v Brown, 415 U.S. 724 (1974), which says, “The political party and the independent candidate approaches are entirely different and neither is a satisfactory substitute for the other.” There are no reported decisions that say it doesn’t matter if the independent procedure is difficult because there are minor parties on the ballot, and therefore the Fitzgerald decision cites none.

The decision says that there were six candidates on the presidential ballot in 2012, and five in 2016. All of them were party nominees. Therefore, the opinion implies, it doesn’t matter that the independent presidential procedure is difficult. But in Anderson v Celebrezze, 460 U.S. 780 (1983), the U.S. Supreme Court struck down Ohio’s independent presidential deadline even though, as footnote twelve says, “five individuals were able to qualify as independent Presidential candidates in Ohio in 1980.” So, the U.S. Supreme Court, if it had used Judge Fitzgerald’s logic, would have upheld Ohio’s law on the grounds that there were plenty of candidates who managed to comply with it. But that is not what the U.S. Supreme Court did.

The Fitzgerald decision faults De La Fuente for not trying to petition in California, but the U.S. Supreme Court struck down Ohio’s petition requirement for new parties in Williams v Rhodes, even though the plaintiff Socialist Labor Party had not tried to petition in Ohio. The U.S. Supreme Court struck down Texas’ lack of procedure for independent presidential candidates in 1976, even though plaintiff Eugene McCarthy did not try to petition in Texas (he could have prepared his own petition and circulated it, but he did not). The U.S. Supreme Court did not fault plaintiff Gus Hall, who sued California in 1972 over its presidential independent petition and who did not try to petition; the Supreme Court remanded his case back to the lower court in Storer v Brown.

The Fitzgerald decision says Ross Perot got on the ballot using volunteers in 1992 in California, to rebut the plaintiffs’ point that the independent presidential petition would require spending a great deal of money. But the decision does not mention the fact, which was in the record, that Perot still had to spend hundreds of thousands of dollars to get on the California ballot in 1992, which he did by opening up several dozen store-front offices in which to let volunteers be trained, pick up and deliver petitions.

The Fitzgerald decision says the burden of collecting 178,039 valid signatures in 105 days is not burdensome, and Fitzgerald dismissed the case without allowing a trial on this point. The Fitzgerald petition says six independent presidential petitions succeeded in California in the period 1976-1988, but it does not mention that in all instances, the requirement was (slightly) under 102,000 signatures, a big difference between the present requirement. The decision also counts Lenora Fulani’s petition success as an independent presidential candidate in 1988, but it does not mention that she won a lawsuit against the old 60-day time limit (Fulani v Eu), and therefore the state agreed to let her on with only 65,000 valid signatures, slightly over half of what the law required her to get.

The decision says there were no strong independent presidential candidates excluded from the California ballot in the past, but does not mention (even though it was in the record) that Eugene McCarthy failed to get on in 1976, and that Ralph Nader failed to get on in 2004. Both candidates petitioned but did not succeed. Another independent presidential candidate who failed to get on in California, even though he had substantial support, was Evan McMullin in 2016. That was in the record also.

The decision mentions that Georgia’s 1% (of the number of registered voters) petition was struck down by the Eleventh Circuit this year, but says that was different because Georgia had no minor party or independent candidates. But the Libertarian Party has been on in Georgia for president in all elections 1988 to the present; and Ross Perot was on in Georgia in 1992 and 1996; and Pat Buchanan was on in 2000. This was all in the record but Judge Fitzgerald chose not to mention it. The poor quality of the decision is partly because the judge rushed to put it out, only two days after the hearing.