On December 17, 2019, the Ninth Circuit refused any relief to Paul Merritt, in his lawsuit against the California Secretary of State for censoring his paid candidate statement for the State Voters Guide. Merritt v Padilla, 18-55457. Here is the opinion, which will not be published.

In 2016, when Merritt was on the primary ballot for U.S. Senate, he paid a substantial amount of money to have his candidate statement printed in the Voters Guide, which is postally mailed to all registered voters. He said he is an independent candidate. Without even telling him, the Secretary of State deleted that sentence and said instead that Merritt has “no party preference.” It is true that the federal courts have already upheld the California law saying the ballot label itself for independent candidates (for office other than President) must be “party preference: none”. But the reason they said that was that candidates are free to call themselves independent candidates in their statement in the Voters Guide.

The U.S. District Court ruling in the Merritt case erroneously said that the ballot label and the candidate’s self-description in the Voters Guide must match. At the Ninth Circuit oral argument, the state conceded that if the Secretary of State had understood that Merritt wanted “independent” to be part of his candidate’s statement, and not just the title for his statement, then the Secretary of State would have printed “independent.” Notwitnstanding the state’s own admission of confusion, the Ninth Circuit upheld the lower court decision. The three judges are Margaret McKeown, Jerome Farris, and visiting U.S. District Court Judge Virginia Kendall.

This is the fifth election law case in a row in which Judge McKeown has ruled against a minor party or independent candidate. She also ruled in favor of the California requirement for independent presidential candidates, almost 200,000 signatures to be gathered in 105 days, saying otherwise the ballot would be crowded (the evidence in that case, which was not contradicted, disproved that). She ruled against the Arizona Libertarian and Green Parties, in their lawsuit against the voter registration form which listed only the Democratic and Republican Parties even though the other two parties were also entitled to a primary at the time. She ruled that there wasn’t enough evidence in a Green Party lawsuit against the February petition deadline for new parties. And she upheld the Arizona primary petition requirements for the Libertarian Party, even though in the two elections in which those requirements were in place, no Libertarian managed to comply with them despite making strong efforts.

There is no living judge on the federal bench who has made so many unfavorable rulings in ballot access, while never having made a favorable ruling. Previously, Eleventh Circuit Gerald Tjoflat had a similar record, but then he ruled favorably in the lawsuit that struck down the Georgia minor party petition requirement for President.