Ninth Circuit Strikes Down Montana’s Unequal Distribution Requirement for the Petition to Create a New Party

Posted on by November 8, 2021
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On November 8, the Ninth Circuit issued an opinion in Montana Green Party v Jacobsen, 20-35340. It struck down the unequal distribution requirement that has existed for Montana petitions for new party recognition ever since 1981. The unequal distribution requirement was responsible for the Green Party’s petition failure in both 2018 and 2020. It requires signatures from one-third of the State House districts. The fatal flaw is that it requires almost three times as many signatures from some districts as from others, even though all districts are approximately equal in population.

The decision says, “The State has provided no reason, much less a compelling reason, for requiring far more signatures in some equal-population districts than in others.”

The decision upholds the March petition deadline for new party petitions that had existed in 2018 and 2020, but it would have been surprising if the decision had struck down that deadline, because the Montana Green Party complied with the March deadline in both 2018 and 2020. Thus there was no evidence that the early deadline injured the party. Another case from any state in the Ninth Circuit against such a similar deadline might win someday, if the plaintiff-party fails to meet the deadline and presents evidence about how the deadline injured it. The decision is by Judge William Fletcher, a Clinton appointee; it is also signed by Judge Michelle Friedland, an Obama appointee; and Judge Frederic Block, a Clinton appointee. The lower court had upheld the distribution requirement.

The decision erroneously seems to say that the new deadline of February 4, created this year, is also constitutional. It says that an earlier deadline was upheld in 2016 in Arizona Green Party v Reagan, 838 F.3d 983, but actually in that case the upheld deadline was February 27, 2014, whereas the 2022 Montana deadline (under the new law passed this year) will be February 4. Also the only reason the Ninth Circuit upheld the Arizona deadline was that the Green Party did not submit any evidence that the early deadline injured it. Furthermore the weather is very different in winter in Montana compared to Arizona. The decision also seems to have a typographical error concerning the deadline law. On page sixteen it correctly says the deadline is 123 days before the primary, but on page sixteen it says the Montana deadline is 128 days before the primary. The Montana primary is the first Tuesday after the first Wednesday in June.

Other states with unequal distribution requirements for candidate or party petitions are Arizona and Iowa. Neither state’s distribution requirement has ever been challenged in court; they are both new.

U.S. Supreme Court to Hear Case on Puerto Rico and the Equal Protection Clause

Posted on by November 8, 2021
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On Tuesday, November 9, the U.S. Supreme Court will hear U.S. v Vaello-Madero, 20-303. This is not an election law case, but the eventural decision might have implications for election law. The issue is the federal law that grants Supplemental Security Income (SSI) to U.S. citizens living in the 50 states, the District of Columbia, and the Northern Mariana Islands, but not to U.S. citizens living in any other U.S. territories. SSI is federal welfare for aged and disabled persons.

The First Circuit had struck down the law. Here is the brief of the U.S. government in defense of the law. Thanks to How Appealing blog for the news about the upcoming argument.

Maine Libertarian Party Submits a New Piece of Evidence in Pending Ballot Access Case

Posted on by November 7, 2021
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On November 5, the Maine Libertarian Party submitted a new piece of evidence in its pending ballot access case, Baines v Bellows, 1:19cv-509. The case concerns several ballot access problems for new and small political parties in Maine. One of the issues is whether the state has any justification to forcibly convert all party members to independent voter status when a party loses its qualified status, without consulting those voters.

The new evidence is a sample letter that New Mexico election officials send to all voters registered into a party that has just lost its ballot qualification. New Mexico, like most states that have registration by party, does not revoke the party registration for members of parties, when that party loses its qualified status. Instead, as the evidence shows, New Mexico sends a letter to all such voters, telling them that their party is no longer qualified, just in case they might want to change party. But the letter makes it clear that the voter need not do anything, and that the voter will remain a member of that party, qualified or not, unless the voter decides to make a change.

The point of this evidence is to show that Maine could have the same tolerant policy, without any election-administration problem, if it wanted to.

Fordham Law Review Publishes Empirical Research Showing 5,000 Signatures is Enough to Avoid Crowded Ballots

Posted on by November 7, 2021
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The Fordham Law Review has published Volume 90, number 2. It includes ten papers from its spring 2021 Presidential Election Symposium, and all of them can be read via this link.

One of the papers is by me, and it shows that in all history, no state that required more than 5,000 signatures for all methods to get onto the general election ballot ever had a crowded general election ballot. There are no instances in which such states had more than eight candidates on the ballot (for any office for which only one winner is to be elected), except that there are two instances when New York had nine candidates for a single office, in 1980 and 1996.

Justice John Harlan wrote in Williams v Rhodes in 1968 that eight candidates for a single office on the ballot is not so many as to confuse voters, and no justice ever contradicted that statement, in any decision of the Court.