On October 3, attorneys for the California Secretary of State filed this letter with the Ninth Circuit, for the pending lawsuit De La Fuente v Padilla, 17-56668. The California lawsuit concerns the independent presidential petition for ballot access, which in 2016 required 178,039 valid signatures, due August 12. De La Fuente filed the lawsuit in 2016, arguing that the California law is too harsh. The U.S. District Court upheld the law and De La Fuente is appealing to the Ninth Circuit.

On September 6, the Sixth Circuit enjoined Michigan’s statewide independent petition requirement of 30,000 signatures, due July 19. The Sixth Circuit said “the burden is caused by the combination of (1) the amount of signatures Michigan requires — 30,000, or about 1% of ballots cast in the prior election of an attorney general and, (2) the timing of the collection and filing of those signatures — a candidate has 180 days to collect signatures that are to be filed by 110 days before the general election.”

De La Fuente then notified the Ninth Circuit of the Michigan decision from the Sixth Circuit. In response, attorneys for California submitted their letter. It implies that the Michigan decision should not influence the Ninth Circuit because the Michigan law had an early petition deadline, relative to when the major parties nominate their candidates. The California letter also says that in California, the presidential primary is in June, and the independent deadline in 2016 was August 12. But the date of the presidential primary is irrelevant. The major parties do not choose their presidential nominee in the California presidential primary. They choose the national ticket at the national convention, which in 2016 was July 25-28. Also the California Secretary of State’s letter says nothing about the fact that the Sixth Circuit opinion was substantially based on the fact that only two independent statewide petitions had succeeded in Michigan since the Michigan procedure was created in 1988. The two successes were 1992 and 2004. But the California independent presidential petition has not been used successfully since 1992, an even worse record than the Michigan record of successful uses of the procedure.