On October 25, the California State Court of Appeals, 2nd district, reversed the trial court and issued an opinion protecting the rights of initiatives. Starr v Chaparro, B307585. Here is the opinion.

Proponents of term limits for the city of Oxnard had submitted an initiative petition. The city refused to put it on the March 3, 2020 ballot, even though it had enough valid signatures. When the city had received the initiative petition, it instead passed the contents of that initiative as an ordinance. This was a hypocritical move, because the city did not favor that particular initiative. Then the city also put their own measure on the ballot, which altered the initiative in a manner that the proponents did not favor. Because there was then only one measure concerning city term limits on the ballot, the voters passed the measure that the city wanted, which automatically cancelled out the ordinance.

The state court ruled that the initiative had a right to be on the ballot, and said the city must put it on a future ballot sometime during the next six months. In California, when a ballot measure passes, it cannot be repealed or altered without another vote of the people (unless the ballot measure specifically makes an exception to that general rule).

On October 28, Georgia filed this opening brief in the Eleventh Circuit in Cowen v Raffensperger, 21-13199. This is the case over the Georgia 5% petition for independent candidates and the nominees of parties that didn’t poll as much as 20% of the presidential vote nationwide, or 20% for Governor of Georgia, in the last election.

For U.S. House, no one has ever compiled with the law since 1964, and back in 1964 the deadline was in October, the signatures weren’t checked, and U.S. House district boundaries matched up with county boundaries, making petitioning far easier. The 1964 success was by an independent candidate. No third party candidate has ever complied with the law since it was passed in 1943.

The state’s main point to show that the requirement is not too difficult is that in 2002, the Libertarian Party “almost” succeeded. As the brief notes, the party spent $40,000 to get one candidate on the ballot, and still didn’t succeed. What the brief fails to mention is that in 2002, because redistricting was late, the petition had been reduced to 3% for that year only.

The state only mentions ballot access precedents that upheld severe laws, and fails to mention any of the cases that struck down similar petition requirements. The state’s footnote three dishonestly says that New Hampshire had a 3% requirement and it was upheld. Actually New Hampshire has two methods for minor parties to appear on the ballot, and the easier one, 3,000 signatures for statewide office and 1,500 signatures for U.S. House, was the subject of that lawsuit. The same footnote also erroneously says the Tenth Circuit upheld Wyoming’s 5% independent petition requirement, when that decision did not come to a conclusion about the constitutionality of the law; also of course, petitioning in Wyoming for U.S. House was far easier because the entire state is one district, so signatures gathered anywhere in the state were valid. Part of the reason no one has succeeded in completing a Georgia 5% petition requirement is that the boundaries of the districts are complex, and invariably a large number of the signatures are invalid because the signer lives outside the district. Footnote three also says the Oklahoma 5% petition was upheld, but that was a party petition in which, again, signatures anywhere in the state were valid; and Oklahoma didn’t require any petition whatsoever for independent candidates for U.S. House.

The state’s brief says the Libertarian Party fell “far short of proving that Georgia’s 5% petition requirement is impossible to meet”, yet as the brief admits, eleven individuals did try in the last 40 years and no one succeeded. One wonders if the state would admit that the petition requirement is too difficult if 100 or 150 years go by without any successes.

Buffalo holds a mayoral election on November 2, 2021. Write-in candidate Byron Brown (the incumbent) has a strong lead, even though he is not on the ballot. The poll forced respondents to volunteer the name of Byron Brown if they intend to vote for him; the only candidate named in the poll was the Democratic nominee, India Walton. See this story.

The Board of Elections will be forced to do a great deal of extra work to canvass so many write-in votes. The Board would have been better off if it had not appealed the decision of the U.S. District Court, putting Brown on the November ballot as an independent candidate. The issue was the early petition deadline. The U.S. District Court followed precedent and ruled the early deadline unconstitutional, but then the Second Circuit stayed that order, without writing any text of its own. The deadline was in May, although before 2019 it had always been in October, September or August.