On September 7, India Walton, Democratic nominee for Mayor of Buffalo, New York, filed a brief in Meadors v Erie County Board of Elections, 21-2137.

The brief can be seen here. It says that the U.S. Supreme Court upheld June petition deadlines in Jenness v Fortson, the 1971 decision that upheld the Georgia ballot access laws. But the deadline was not an issue in that case; the Socialist Workers Party, which filed that case, did not complain about the deadline. Justice John Paul Stevens established this in his dissent in Mandel v Bradley, a 1977 U.S. Supreme Court case that considered Maryland’s old March petition deadline, but which did not decide the issue; instead the case was remanded back to the lower courts for more fact-finding. In Mandel v Bradley, Justice Stevens wrote, “The question (of the June deadline) was neither raised nor decided by the Court in Jenness. Thus, that decision is not controlling on this point.”

The brief says the purpose of the New York May petition deadline is to stop “sore losers”. But in Anderson v Celebrezze, the 1983 U.S. Supreme Court decision that struck down Ohio’s March petition deadline, the candidate who had filed the case, John B. Anderson, independent presidential candidate in 1980, was also a “sore loser”. The Anderson decision says that early deadlines cannot be used to block “sore losers”. If a state wants to block “sore losers”, it can do so with a law that applies specifically to that issue. But it can’t just depend on early deadlines to block sore losers, because an early deadline blocks many other candidates who are not sore losers.

The decision says there is a “mountain of precedent” that independent candidate petition deadlines can be earlier than primary day, but it doesn’t cite a single such precedent, except for Stevenson v Illinois State Board of Elections. The brief fails to say that the Stevenson precedent was reversed by a later decision of the Seventh Circuit, Lee v Keith. The brief also cites McLain v Meier (1988), and Rainbow Coalition of Oklahoma v Oklahoma State Election Board, but neither of those cases involved independent candidates. Instead they concerned petitions to create a new party, and in both states (North Dakota and Oklahoma) the law required new parties to nominate by primary, so the courts upheld those deadlines so as to give the new party its own primary. The brief inaccurately says the Oklahoma case is about the “independent filing deadline”.

Other precedents relied on by the brief concerned petition deadlines that were on primary day, or the day before the primary. But the New York deadline is a month before the primary.

The brief says the New York deadline should be upheld because some independent candidates other than Mayor Byron Brown succeeded in getting on the ballot this year. But that is no defense, because in Anderson v Celebrezze, that was also true. The Anderson decision, footnote 12, notes that five presidential candidates managed to meet the Ohio deadline in 1980, but that didn’t save the Ohio deadline from being struck down.

The brief says New York’s ballot access is “quite liberal” because the state lets primary voters sign for an independent. But that is true for all states, except Texas (Minnesota has language on its petition saying the signer doesn’t intend to vote in the primary for that particular office, but the law has no teeth because no one can know if a signer voted for any particular office in the primary, due to the secret ballot).