On July 13, Arizona Governor Jan Brewer signed SB 1074, another omnibus election law bill. The only ballot access implications in SB 1074 are that the bill moves the non-presidential primary from 9 weeks before the general election, to 10 weeks. Therefore, in 2010, Arizona will hold its primary on August 24, the earliest non-presidential primary in Arizona history.
The date change means that the non-presidential independent candidate deadline moves a week earlier, to May 26. There is no logical reason why the independent candidate petition deadline is keyed to the date of the primary, but in Arizona, that is how it is done. The petition to recognize a party also moves a week earlier, to March 4.
It provides a consistent petition filing deadline and simplifies enforcement of the restriction on someone signing both a petition of a party candidate and a non-party candidate. Petitioners may specify a three word description that will appear on the ballot. This effectively serves as a party designation, and thus the candidate is the equivalent of a party candidate who is unopposed in his primary. And when Arizona switches to a Top 2 primary, it won’t have to change filing deadlines.
You may disagree with the decision of the Arizona legislature, but in can hardly be said that there is no logical reason for having a consistent deadline.
Federal or state courts have struck down state election laws that required non-presidential independent candidates to file on the same day as primary candidates, in Alabama, Alaska, Arkansas, Illinois, Indiana, Kansas, Kentucky, Maine, Maryland, Massachusetts, Nevada, New Jersey, North Carolina, Ohio, Pennsylvania, and South Carolina (16 states). All of the decisions were unanimous. It doesn’t seem as though judges think it’s rational to force independent non-presidential candidates to file as early as primary candidates.
Did those States have laws that restricted a petition signer to signing a petition for either a party candidate or non-party candidate, or permit the petitioners to define a description that would serve as the equivalent of a party name for the candidate they are nominating?
The US Supreme Court in American Party of Texas v. White upheld a system where all candidates had to file their declaration at the same time, and independent candidates had to qualify for the general election contemporaneously with party candidates.
Actually, American Party of Texas v White said nothing about the Texas law that a non-presidential independent must file a declaration of candidacy by the same day that primary candidates need to file such paperwork. The US Supreme Court decision, footnote 7, quotes all the Texas laws on independent candidate ballot access (Articles 13.50 thru 13.51) except for the law that requires an independent to file that declaration (Article 13.52).
Furthermore, neither of the two plaintiffs who wanted to be independent candidates complained about that early declaration of candidacy deadline. It is probable that no Justice of the US Supreme Court even knew about that declaration of candidacy law.
#4 Read footnote 10 of the majority opinion. The Supreme court were clearly aware of the declaration requirement with respect to minor parties. I would regard it extremely improbable that not a single justice was aware of the the equivalent provision with regard to independent candidates.
And compare Footnote 7 of the the majority opinion to Footnote 2 of the Douglas dissent. May we infer that Justice Douglas did not regard Art 13.51 to be a part of the requirements for independent candidates – even though when comparing the Texas requirement to those of Georgia under Jenness, he specifically notes the requirement that signatures be notarized (actually under 13.51 it was the oath taking by the signer that was being notarized).
Footnote #10 has nothing to do with independent candidates. It concerns the law that required minor party members who wanted to be nominated at a convention of a minor party to notify the party in advance of the convention.
Arizona does not have a provision for nominating independent candidates. It has a provision for nominating candidates by “other than primary”, by which a group of voters may collectively nominate a candidate and specify the designation under which their candidate will appear on the ballot in lieu of a party name.
A candidate nominated under this procedure is every much as dependent on the support of the voters who nominated him as is a candidate who is nominated in a primary is dependent on the support of those who voted in the primary.
You wrote:
“It is probable that no Justice of the US Supreme Court even knew about that declaration of candidacy law.”
You cited as evidence that the majority opinion only quoted 13.50 and 13.51, and not 13.52 in their footnote. But you ignore that Justice Douglas in a footnote to his dissent only quoted 13.50 and yet referred to a provision that is specific to 13.51. We certainly can’t presume that Justice Douglas was not aware of 13.51 simply because he did not include it in his footnote, while referred to its content in his opinion.
So on what basis do you conclude that all justices were probably unaware of 13.52?
While it is true that the declaration discussed in Footnote 10 applies to minor party candidates, it is entirely parallel to equivalent provisions for major party candidates and independent candidates. I do not find it conceivable that all justices were unaware of the entire structure of the qualification procedure.
Note the political chairmen with whom declarations are filed are in turn required to file these with the Secretary of State. The reason that declaration of independent candidates is filed directly with the SoS is because there is no party, and the SoS directly oversees the qualification process, while conventions and parties are conducted by the political parties.
But there is also a public notice aspect of this, since voters may only participate in the nomination process of a single party OR of independent candidates (eg in 2006, Kinky Friedman urged voters to “Save themselves for Kinky” by not voting in a party primary or attending a party convention.