Arizona State Senator Martin Quezada (D-Phoenix) has introduced B 1668, to eliminate Arizona presidential primaries. Parties would be required to choose delegates to the national conventions by caucus, and the bill also requires caucuses to be open to independent voters as well as party members. That part of the bill would be unconstitutional. States have no authority to tell parties that non-members must be permitted to participate in party-financed and administered caucuses. Thanks to Josh Putnam for news about the bill.

On February 11, the South Carolina House Judiciary Committee passed HB 3262. It would require candidates seeking the nomination of a party that nominates by convention to pay a filing fee during March of an election year. It has 21 sponsors, all Republicans: Russell Fry, Chip Huggins, Sylleste Davis, William Newton, Garry Smith, Adam Morgan, James Burns, Shannon Erickson, Linda Bennett, Anne Thayer, Bill Taylor, Bruce Bryant, Jason Elliott, Mark Willis, Raye Felder, Sandy McGarry, V. Stephen Moss, Patrick Haddon, Steven Long, Thomas Pope, and Cal Forrest.

If enacted, the bill would be unconstitutional for two different reasons. The first is that the Fourth Circuit ruled in Dixon v Maryland State Board of Elections, 878 F 2d 776 (1989) that states can’t require filing fees, unless the purpose of the filing fee is to keep a ballot uncrowded. In the Dixon case, the court struck down a $290 fee to file as a declared write-in candidate. The rationale was that a write-in candidate does not cause any ballot to be crowded with too many names. Similarly, for the South Carolina situation, a candidate seeking the nomination of a convention party is not causing any primary ballot to be crowded, because there are no primary ballots for parties that nominate by convention.

Independently of that, South Carolina has lost two federal cases in the past when it tried to enforce other election procedures on newly-qualifying parties. The bill requires fees to be paid in March of election years, but the election law also says that a petition for a new party is not due until May of an election year. In 1996 the Natural Law Party submitted a petition by the deadline, but the state tried to keep it off the ballot because it had not held various conventions in the months before it qualified. A U.S. District Co9urt said the state can’t impose duties on parties before they have submitted their petition. Natural Law Party v DePass, 3:96-2301 (1996).

The state tried to impose the same rules on the Working Families Party in 2006, the yeare it submitted its petition, and again that was held unconstitutional. Working Families Party v Bowers, 3:06-2125. Thanks to Scott West for the news about the bill. UPDATE: see this story about the bill.

On February 10, the Second Circuit refused to enjoin the new New York definition of a qualified political party. SAM Party of New York v Kosinski, 20-3047. Here is the twenty-page opinion, which was written by Judge Michael H. Park, a Trump appointee. It is also signed by Judge Robert D. Sack, a Clinton appointee, and Steven J. Menashi, a Trump appointee.

The new definition requires a party to poll 2% of the presidential vote to retain its qualified status. The decision says there are two state interests in the new, more difficult requirement: (1) to improve the chances that the winner will get a majority of the popular vote; (2) to save money, because the state now has public funding for candidates for state office, although it doesn’t start until 2024.

Both justifications are utterly without merit. Point one could be solved if the state used ranked choice voting. Point two is easily rebutted by pointing out that the Second Circuit already ruled in a Connecticut case that states need not provide public funding to minor parties or independent candidates.

The decision falsely claims that removing a party’s qualified status is not a severe burden, because its nominees can use the independent petition. But the decision utterly ignores the fact that New York is one of only eleven states in which an unqualified party cannot regain its status as a qualified party in advance of any particular election. Because New York has no means for a group to become a qualified party in advance of an election, it must have separate petitions for each of its district nominees, plus a separate petition for its statewide nominees. For an unqualified party to run a full slate of U.S. House candidates alone would take 94,500 signatures; for a full slate for State Senate, 186,000 signatures; for a full slate for Assembly, 225,000 signatures; for a statewide slate, 45,000. That totals 550,500 signatures, and that doesn’t even include city and county office, nor Justice of the Supreme Court.

The decision does not mention that these independent petitions must be completed within a six-week period, due in May of election years.

The decision claims that other courts have upheld similar severe definitions of a qualified party, but all of the precedents listed in the decision are from states with a procedure for a group to transform itself into a qualified party in advance of any particular election.

The decision says that because president is the only statewide office always on the ballot in presidential years, the state needs to make the presidential vote part of the definition of a qualified party, if it wants to have updated information about the strength of parties every election. This is false; if the judges were familiar with the laws of other states, they could see that other states solve this problem by using registration data, which Alaska, Arizona, California, Colorado, Delaware, Louisiana, Maine, Maryland, Massachusetts, Nebraska, Nevada, and Oregon use. Or New York could measure a party’s vitality by noting how many nominees it runs, as Idaho, South Carolina, Mississippi, and Louisiana do. Thanks to Frank Morano for this sad news.