FOURTH CIRCUIT UPHOLDS NORTH CAROLINA’S MARCH 3 INDEPENDENT PRESIDENTIAL PETITION DEADLINE

On July 6, the Fourth Circuit upheld North Carolina’s independent presidential petition deadline of March 3. Buscemi v Bell, 19-2355. The decision is by Judge Barbara Keenan, an Obama appointee. It is signed by Judge Diana G. Motz, a Clinton appointee; and Judge Pamela Harris, an Obama appointee. The presidential plaintiff candidate is Kyle Kopitke.

The decision contradicts the U.S. Supreme Court decision Anderson v Celebrezze, and every other decision on the subject of independent presidential deadlines. The Supreme Court said Ohio’s March 20 deadline was too early, even though Ohio only required 5,000. The North Carolina requirement is 70,666.

The decision says that petition deadlines are only unconstitutional if they are earlier than that state’s primary. That statement is untrue for presidential independent deadlines, and there is no other precedent, relative to presidential petitions, that agrees with Buscemi. Nothing in Anderson v Celebrezze says that the date of a primary relates is relevant.

Anderson v Celebrezze says that independent presidential candidates must be allowed to declare in the summer. It quotes historian Alexander Bickel: "Never has it been as evident as in 1968 that unforeseen occurrences in the early portion of an election year can fundamentally affect all political expectations. For administrative reasons, there has to be a cutoff date sometime, but there is more than a little of the capricious in laws that force a commitment to act (within or without the major parties) in at least two states before such an upheaval as President Johnson’s withdrawal on March 31, 1968, and in many states before important primaries, not to mention such an event as the assassination of Robert F. Kennedy on June 5, 1968."

Anderson v Celebrezze also says, near the end of the decision, that early deadlines impair the State’s interest in "preserving party harmony." The decision again quotes Professor Bickel, who says, "The characteristic American third party consists of a group of people who have tried to exert influence within one of the major parties, have failed, and later decide to work on the outside. States in which there is an early qualifying date tend to force such groups to create minor parties without first attempting to influence the course taken by a major one. For a dissident group is put to the choice of foregoing major-party primary and other prenomination activity by organizing separately early on in an election year, or losing all opportunity for action as a third party later."

Lower court opinions on independent presidential petition deadlines have been unanimous that such deadlines can’t be in months earlier than May, and only one such precedent upheld any deadline earlier than mid-July. None of those decisions even hinted that the date of that state’s primary was relevant to whether the independent deadline was too early.

Ironically, the Fourth Circuit itself had struck down Maryland’s March 3 deadline in Anderson v Morris, 636 F.2d 55 (1980). Also a U.S. District Court in North Carolina had struck down that state’s April 25 deadline in Greaves v State Board of Elections, 508 F.Supp.78 (e.d. 1980).

States in which the independent presidential petition deadline was later than that state’s own primary, but in which the deadline was still held to be too early, are South Dakota (Nader v Hazeltine, 110 F.Supp.2d 1201, 2000) and Pennsylvania (Libertarian Party v Davis, unreported decision, 1984).

The Buscemi decision does not mention any of these precedents. It only cites to precedents that did not involve independent presidential candidates. Other cases striking down early independent presidential petitoin deadlines that are not mentioned in this article are from Alaska, Arizona, Kansas, Maine, Massachusetts, Missouri, Nevada, New Jersey, Rhode Island, and Utah. None of them are mentioned in the decision either.

The absurdity of the Buscemi decision is most clearly shown by the fact that in 2008, New Hampshire’s primary was on January 8. Under the theory advanced by the Buscemi judges, it would be constitutional for New Hampshire to have an independent presidential petition deadline of January 8.

Except for North Carolina, no state has an independent presidential petition deadline earlier than May, and only one state (Texas) has a May deadline. Most states have August deadlines; the second most common month is July. There are a handful in June, and also a handful in September. The last deadline is September 4.

The decision also upholds the number of signatures, 70,666. The decision says this imposes just a "modest" burden. Evidence in the case showed that no independent petition for statewide office had ever succeeded in North Carolina, except in 1992. It also showed that states that require 5,000 signatures never have a crowded ballot, if "crowded" means more than eight candidates for a single office. The decision does not mention any of this evidence.

On July 9, the plaintiffs asked for a rehearing en banc, which is still pending.

California: on July 2, a state trial court extended the petition deadline for two statewide initiatives. Sangiacomo v Padilla, 34-2020-80003413; and Macarro v Padilla, 34-2020-80003404. The law says initiative petitions must be completed within six months, but that law is suspended. The two initiatives don’t expect to qualify for 2020, but their signatures can now be used for 2022.

Georgia: on July 9, U.S. District Court Judge Eleanor Ross, an Obama appointee, cut the signatures for minor party and independent candidates down to 70% of normal. Cooper v Raffensperger, n.d., 1:20cv-1312.

Idaho: on June 26, U.S. District Court Judge B. Lynn Winmill, a Clinton appointee, ordered ballot access relief for statewide initiatives. Reclaim Idaho v Little, 1:20cv-268. On July 14, the Ninth Circuit refused to stay the lower court decision, by 2-1.

Maryland: on July 20, U.S. District Court Judge Richard Bennett, a Bush Jr. appointee, cut the number of signatures for independent candidates by 50%. Ivey v Lamone, 1:20cv-1995.

Michigan: on July 3, the Sixth Circuit refused to stay the order of a lower court that had granted relief to a statewide initiative. SawariMedia v Whitmer, 20-1594.

Oregon: on July 13, U.S. District Court Judge Michael McShane ordered ballot access relief for a statewide initiative. People Not Politicians v Clarno, 6:20cv-1053. On July 23, the Ninth Circuit refused to stay that order, by a vote of 2-1.

Rhode Island: on June 30, U.S. District Court udge Mary S. McElroy, a Trump appointee, issued an order allowing electronic signatures. Acosta v Restrepo, 1:20cv-262.

Virginia: on July 15, U.S. District Court Judge John A. Gibney, Jr., cut the number of signatures for independent presidential candidates, and the nominees of unqualified parties, from 5,000 to 2,500 signatures.

He cut the number for U.S. Senate from 10,000 to 3,500. He set the congressional deadline on August 1.

Maine: on July 15, the Secretary of State said the Republican Party’s referendum petition to block ranked choice voting for President did not have enough signatures. If it had qualified, the state could not have RCV for president this year.

Massachusetts: on July 13, the state said the initiative to use ranked choice voting for congress and state office has enough signatures, so it will be on the November ballot.

On July 13, the U.S. Supreme Court said it will hear Carney v Adams, 19-309, on Monday, October 5. The Court was going to hear this case on March 25, but then because of the health crisis it postponed some of its hearings. This is the challenge to the Delaware law that says no one may be appointed to most judicial posts unless he or she is a member of a party with registration of at least 5%. This is the first case in the U.S. Supreme Court involving independent and minor party members since 2005.

On July 6, the U.S. Supreme Court released its opinions in the two cases involving presidential electors. Chaifalo v Washington upheld the Washington state law that says if a presidential elector votes for someone other than the person who received the most popular votes, he or she can be fined $1,000. It is 18 pages, surprisingly short, and is authored by Justice Elena Kagan. It was unanimous, although Justices Clarence Thomas and Neil Gorsuch did not agree with the reasoning and would have upheld the state laws because of the Tenth Amendment.

The other case, Colorado Department of State v Baca, upheld a Colorado law that says if a presidential elector votes for someone other than the person who received the most popular votes in the state, he or she can be removed and immediately replaced with a new elector chosen by the remaining presidential electors. It is only one sentence long, and says, "The judgment of the U.S. Court of Appeals for the Tenth Circuit is reversed for the reasons stated in Chiafalo v Washington."

Most commentary about the decisions is supportive. Editorial writers seemed to believe that now, the electoral college system is more democratic and more coherent. However, the opinions actually increase uncertainty.

Can Congress Refuse to Count an "Unfaithful" Electoral Vote?

In the entire history of the United States, Congress has never rejected any electoral vote on the grounds that the elector had no right to cast such a vote (except that in 1873 Congress rejected the three electoral votes for Horace Greeley, who had died on November 29, 1872). But the decision suggests that it would be reasonable for Congress to reject the vote of a presidential elector who voted for someone who didn’t carry that state, if the elector is from one of the 21 states that tell electors to be "faithful" but which have no enforcement mechanism. The decision says, "Congress has counted all those (faithless) votes. But because faithless votes have never come close to affecting an outcome, only one has ever been challenged. True enough, that one was counted…Anyway, the State appointing that elector had no law requiring a pledge or otherwise barring his use of discretion."

That reference is to a faithless elector from North Carolina in 1968. He was supposed to have voted for Richard Nixon, but he had voted for George Wallace. Currently, 21 states and the District of Columbia require a presidential elector to be "faithful" but have no means of enforcing that law.

In the future, if an elector from one of those 22 jurisdictions casts an "unfaithful" vote, Congress will have no clear guideline on whether to count it or not, because of this paragraph from the decision. Whereas tradition had formerly dictated congressional behavior on this point, the decision undermines that tradition. A future Congress is now left at sea, and what it does will probably be determined by partisan politics.

Must an Elector Vote for a Dead Candidate?

Justice Kagan wrote footnote eight to deal with the situation in which a presidential candidate dies between the November election and the mid-December meeting of the electoral college. She wrote, "Some states have drafted their pledge laws to give electors voting discretion when their candidate has died. See, e.g., Cal. Elec. Code Ann. 6906; Ind. Code 3-10-4-1.7. And we suspect that in such a case, States without a specific provision would also release electors from their pledge. Still, we note that because the situation is not before us, nothing in this opinion should be taken to permit the States to bind electors to a deceased candidate."

Only six states have laws that if an elector votes "faithlessly", he or she is replaced on the spot by someone else. Of those six states, Indiana is the only one with an exception for the death of a candidate. The other replacement states, Minnesota, Montana, Nebraska, Nevada, and Washington, do not have an exception for death (Washington was not a replacement state in 2016, but since then it has changed its law).

Yet the opinion says that even if a state law doesn’t have a death exception, the Court assumes that in case of a death, the state would break its own law and let electors have discretion. But who would decide? Would the state official in charge of holding the meeting decide? In most states the presiding officer is the Secretary of State. And could the Secretary of State then direct the electors on whom they should vote for?

The Court’s blessing for letting states disobey their own laws in case of death invites further ambiguity. Requiring an elector to vote for a dead person is obviously foolish policy. But suppose the candidate is alive, but in a coma and not expected to recover? Or suppose the candidate is newly revealed to have committed a heinous crime? What authority is there to exempt death but not any other compelling reason for elector discretion?

Footnote eight also glosses over the problem that a candidate might die before the November election, but after that state’s ballot has been printed. Many states now print November ballots at the end of August, and most states allow early voting, sometimes starting in September. Voting day has been replaced in most of the United States by voting month. In 1972, the Democratic Party replaced its vice-presidential nominee with someone new, in August. Suppose the party had made that replacement in September or October? Under a system with elector discretion, there would be no problem, regardless of which candidate’s name was on the ballots. But under a system in which electors must vote for the popular vote winner, the electors would be forced to vote for a vice-presidential nominee who was no longer running and no longer his or her party’s choice.

George Wallace in 1968 replaced his vice-presidential nominee in October. All of his 46 presidential electors voted for the new nominee, Curtis LeMay, even though under a system in which the electors must vote for the person whose name was on the ballot, they would have been forced to vote for the stand-in candidate, Marvin Griffin, whose name was on the November ballots in almost all states.

Philosophical Incoherence

The Constitution mentions few particular government officers: President, Vice-President, Member of Congress, Chief Justice, and presidential electors. That is the entire list. The Constitution doesn’t even mention Secretary of State.

Therefore, to permit states to treat presidential electors as though they were nothing but tally clerks, offends the spirit of the Constitution.

Furthermore, many states, and the District of Columbia, have elaborate qualifications for who may serve as an elector. They must not have been convicted of a felony; they must be legally competent; they must be age 25; they must have lived in their jurisdiction for at least three years; they must reside in a particular U.S. House district; they must have been a citizen for ten years; and they must be a registered voter in the party that nominated them. What sense do all these qualifications make, if their only job is to mindlessly write down on a piece of paper the name of the presidential and vice-presidential candidate who carried their state?

In the states which replace disobedient electors on the spot and replace them, the new elector could be anyone at all, even somebody who just happened to be in the state Capitol at the right time, and who was willing to step in on short notice.

On June 30, Governor Andrew Cuomo said that statewide independent candidates need 30,000 signatures instead of 45,000. U.S. House candidates need 2,450 instead of 3,500. The petitioning period will be July 1-July 30. The changes are in response to the health crisis. On July 10, two independent candidates filed a lawsuit against the new number of signatures; one is running for U.S. House and one for State Senate. They seek a further reduction, or permission to gather electronic signatures. Eisen v Cuomo, s.d., 7:20cv-5121.

On July 17, the Party for Socialism & Liberation filed a lawsuit against the D.C. presidential petition, which requires 5,007 signatures. La Riva v D.C. Bd. of Elecdtions, 1:20cv-1937. Earlier the Board reduced all the other districtwide petitions to 250 signatures.

STATE	Howie Hawkins	Dario Hunter	SKM.Curry	Dennis Lambert	David Rolde	no one
Alabama	2	1	0	0	0	0
Arizona	3	2	0	0	0	1
Arkansas	4	0	0	0	0	0
California	16	9	8	7	3	0
Colorado	4	2	0	0	0	1
Connecticut	6	3	0	0	0	0
Delaware	1.5	2.5	0	0	0	0
Dist. Columbia	4	0	0	0	0	0
Florida	6	2	0	0	0	1
Georgia	4	0	0	0	0	0
Hawaii	1.5	2.5	0	0	0	0
Idaho	0	4	0	0	0	0
Illinois	20	7	0	0	0	0
Indiana	2.5	1.5	0	0	0	0
Iowa	1	2	0	0	0	1
Kansas	4	0	0	0	0	0
Kentucky	4	0	0	0	0	0
Louisiana	1	0	1	0	0	0
Maine	3	6	0	0	0	2
Maryland	5	3	0	0	0	0
Massachusetts	6	4	1	0	0	0
Michigan	7	3	one-half	0	0	0
Minnesota	0	6	0	0	0	0
Mississippi	3	1	0	0	0	0
Missuori	2.5	1.5	0	0	1	2
Nebraska	1	1	0	0	0	1
Nevada	4	0	0	0	0	0
New Jersey	5	0	0	0	0	0
New Mexico	3	1	0	0	0	0
New York	17	4	0	0	0	0
North Carolina	4	0	0	0	0	0
Ohio	3.5	3	0	one-half	0	0
Oklahoma	1	1.5	0	0	one-half	0
Oregon	3	2	1	1	0	0
Pennsylvania	6	5	0	0	0	0
South Carolina	4	0	0	0	0	0
Tennessee	2	2	0	0	0	0
Texas	20	3	3	0	0	0
Utah	2	1	0	0	0	1
Virginia	3.5	1.5	0	0	0	0
Washington	2	3	0	0	0	0
West Virginia	5	0	0	0	0	0
Wisconsin	2	2	0	0	0	0
Black Caucus	2	2	0	0	0	0
Latinx Caucus	1	3	0	0	0	0
Gay Caucus	2	2	0	0	0	0
Women’s Cau.	2	2	0	0	0	0
Youth Caucus	4	0	0	0	0	0
TOTAL	210	102	11.5	8.5	4.5	10

The eight states not listed did not have delegates: Alaska, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, Vermont, and Wyoming. By contrast, in 2016, eleven states sent no delegation; in 2012, seventeen sent no one.

Sanders one-half.

State	Requirements		Signatures Collected			Three Types of Deadlines
	Full Party	Cand.	Lib’t	Green	Consti	Full Party	Pres Party	Pres. Ind.
Ala.	51,588	5,000	*5,500	*120	0	Mar. 3	Mar. 3	Aug. 20
Alaska	(reg) 8,358	#3,212	*finished	*finished	*finished	May 4	Aug. 5	Aug. 5
Ariz.	31,686	#37,769	already on	0	0	Nov 29 ‘19	Sep. 4	Sep. 4
Ark.	10,000	#1,000	already on	*finished	already on	*Sep 5 ‘19	Aug. 3	Aug. 3
Calif.	(es) (reg) 65,000	196,964	already on	already on	232	Oct 2 ‘19	July 6	Aug. 7
Colo.	(reg) 1,000	#pay $1,000	already on	already on	already on	Jan. 10	Aug. 5	Aug. 5
Conn.	no procedure	#5,250	already on	already on	0	– –	Aug. 5	Aug. 5
Del.	(reg) 720	7,118	already on	already on	*286	Aug. 25	Aug. 25	July 15
D.C.	no procedure	*in court	already on	already on	0	– –	Aug. 5	Aug. 5
Florida	get FEC recog.	132,781	already on	already on	already on	April 15	Sep. 1	July 15
Georgia	64,354	#*5,250	already on	*100	0	Aug. 14	Aug. 14	Aug. 14
Hawaii	757	#4,347	already on	already on	already on	Feb. 24	Aug. 5	Aug. 5
Idaho	13,809	1,000	already on	400	already on	Aug. 31	Aug. 31	Aug. 24
Illinois	no procedure	#25,000	already on	already on	*too late	– –	*July 20	*July 20
Indiana	no procedure	#44,935	already on	*too late	*too late	– –	June 30	June 30
Iowa	no procedure	#1,500	*900	0	*50	– –	Aug. 14	Aug. 14
Kansas	21,112	5,000	already on	*too late	*too late	June 1	June 1	Aug. 3
Ky.	no procedure	#5,000	already on	0	0	– –	Sep. 4	Sep. 4
La.	(reg) 1,000	#pay $500	already on	already on	158	May 18	Aug. 21	Aug. 21
Maine	(reg) 5,000	#4,000	*in court	already on	*too late	Jan. 2	July 25	July 25
Md.	5,000	*5,000	*finished	*finished	*too late	Aug. 3	Aug. 3	Aug. 3
Mass.	(reg) *45,814	#10,000	already on	already on	*too late	Feb. 4	July 28	July 28
Mich.	42,506	12,000	already on	already on	already on	July 16	July 16	July 16
Minn.	129,365	#2,000	*2,000	*100	0	May 1	Aug. 18	Aug. 18
Miss.	be organized	1,000	already on	already on	already on	Feb. 1	Sep. 4	Sep. 4
Mo.	10,000	10,000	already on	already on	already on	July 27	July 27	July 27
Mont.	5,000	#5,000	already on	already on	0	in court	Aug. 12	Aug. 12
Nebr.	6,980	2,500	already on	0	0	Aug. 3	Aug. 3	Aug. 3
Nev.	9,608	9,608	already on	*already on	already on	June 5	June 5	July 10
N. Hamp.	17,209	*3,000	*in court	0	0	Aug. 5	Aug. 5	Aug. 5
N.J.	no procedure	#800	*already on	*already on	*already on	– –	July 27	July 27
N. M.	3,483	3,483	already on	already on	already on	June 25	June 25	June 25
N.Y.	no procedure	*30,000	already on	already on	*too late	– –	*July 30	*July 30
No. Car.	11,778	in court	already on	already on	already on	May 18	May 18	*March 3
No. Dak.	7,000	#4,000	already on	0	0	Apr. 10	Aug. 31	Aug. 31
Ohio	44,296	*in court	already on	5,500	0	July 1	Aug. 5	Aug. 5
Okla.	35,592	#pay $35,000	already on	*in court	*too late	Feb. 28	July 15	July 15
Oregon	27,960	17,893	already on	already on	already on	Aug. 25	Aug. 25	Aug. 25
Penn.	no procedure	#*5,000	*finished	*finished	*too late	– –	Aug. 3	Aug. 3
R.I.	18,758	#1,000	*50	*100	0	Aug. 3	Sep. 4	Sep. 4
So. Car.	10,000	10,000	already on	already on	already on	May 4	May 8	*July 20
So. Dak.	3,393	3,393	already on	0	0	July 1	July 1	Aug. 4
Tenn.	56,083	275	*220	*150	*finished	Aug. 5	Aug. 5	*Aug. 20
Texas	83,435	79,939	already on	already on	in court	May 25	May 25	May 11
Utah	2,000	1,000	already on	already on	already on	Nov 30 ‘19	Nov 30 ‘19	Aug. 17
Vermont	be organized	#*0	already on	*already on	*finished	De 31 ‘19	Aug. 3	Aug. 3
Virginia	no procedure	*2,500	*2,100	0	0	– –	Aug. 21	Aug. 21
Wash.	no procedure	#1,000	*finished	*finished	*too late	– –	July 25	July 25
West Va.	no procedure	#7,145	already on	already on	0	– –	Aug. 3	Aug. 3
Wisc.	10,000	#2,000	*2,500	*800	already on	April 2	Aug. 4	Aug. 4
Wyo.	4,018	4,018	already on	0	already on	June 1	June 1	Aug. 25
States On			38*	24*	17*	~

# partisan label, other than just "independent", permitted
*change since the July 1, 2020.

The chart above only has room for three parties. Four more candidates will probably be on in at least eleven states:

Alliance Party: its presidential nominee, Rocky De La Fuente, will probably be on in Alaska, Arkansas, Colorado, Delaware, Florida, Idaho, Iowa, Louisiana, Maine, Michigan, Minnesota, Mississippi, New Jersey, Ohio, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Virginia, and Washington.

independent Kanye West: it is difficult to predict where he will be on the ballot. He has petitioned in Illinois, New Jersey, New York, and South Carolina, but his South Carolina petition failed and he is being challenged in Illinois.

independent Brock Pierce: will probably be on in Alaska, Arkansas, Colorado, Idaho, Iowa, Louisiana, Minnesota, Mississippi, Oklahoma, Tennessee, Utah, Vermont, Washington, and Wisconsin. He may qualify in Florida if the Natural Law Party re-qualifies and nominates him. Pierce is the first presidential candidate in history who lives in a U.S. territory; he lives in Puerto Rico.

Party for Socialism & Liberation: will probably be on for president in Arkansas, California, Colorado, D.C., Illinois, Louisiana, New Jersey, New Mexico, Tennessee, Utah, and Vermont. The nominee is Gloria La Riva.

In 2020, independent presidential candidates and the presidential nominees of unqualified parties can get on the Oklahoma ballot with no petition, if they pay $35,000. This new option was created in 2017. On the deadline, Brock Pierce, Kanye West, and Jade Simmons all paid the fee, and will be on in Oklahoma. No one else did, although the Green Party is suing over the amount of the fee. The Libertarian Party is qualified in Oklahoma so is on for free.

Jade Simmons is an independent candidate who intends to petition only in eight states that ban presidential write-ins.

Earlier this year, the Working Class Party became a qualified party in Maryland by submitting 10,000 signatures. They were collected before the health crisis began. The party is also on the ballot in Michigan.

A new party in Illinois, the Willie Wilson Party, has petitioned to place its U.S. Senate nominee on the ballot. The nominee, not surprisingly, is Willie Wilson, a wealthy businessman who tried to run for president in the Democratic Party in 2016. If he gets at least 5%, his party will be ballot-qualified for all the statewide offices in Illinois in 2022. In the past, Illinois law required new parties to run a full slate, but a Libertarian lawsuit overturned that law in 2017. Otherwise the party would have been required to have a presidential nominee.

On July 23, President Donald Trump said the Republican Party has abandoned the second half of its national convention, which was to have been in Jacksonville, Florida, August 25-27. All that remains is the August 24 session in Charlotte, North Carolina. This will be the first time since 1864 that either major party had a presidential convention that was only one day long. Both major parties had one-day conventions that year.