On September 4, Kanye West filed this brief in the Arizona Supreme Court in his ballot access case, West v Clayton.
Reply
On September 3, the Eleventh Circuit withdrew its original decision in Jacobson v Lee, 19-14552, and issued a new opinion. The first opinion, from April 29, upheld Florida’s law on ballot order because the plaintiff Democrats lacked standing. The new opinion says that ballot order lawsuits cannot even be entertained by federal courts, because they represent a “political question” that is outside the scope of litigation.
The vote is 2-1. Judges William Pryor, a Bush Jr. appointee; and Robert Luck, a Trump appointee, signed the opinion. Judge Jill Pryor, an Obama appointee, dissented. Her dissent is 82 pages, longer than the 70-page majority opinion.
It is ludicrous to say that federal courts cannot adjudicate laws on the order of candidates on the ballot. They have been doing so for fifty years. The majority says that because the U.S. Supreme Court in 2019 held that partisan gerrymandering cases can’t be adjudicated in federal court, therefore ballot order can’t be either. But partisan gerrymandering cases are uniquely difficult because there is no obvious way to settle what is fair from what is not fair. By contrast, it is easy to design a fair ballot order system: either rotate the names of candidates from precinct to precinct, or hold a random method of choosing. One-third of the states use one of these methods. The dissent mentions these, and also suggests that putting candidates on the ballot by alphabetical order of their surname is fair. Not everyone agrees that that is fair.
Generally, when judges dissent, they say, at the bottom, “I respectfully dissent.” In this case, Judge Jill Pryor omitted the word “respectfully.”
On September 4, the challengers to the Pennsylvania statewide Green Party petition acknowledged that the petition does have enough valid signatures. But the challengers still insist that Howie Hawkins can’t be on the ballot, because they say the stand-in presidential and vice-presidential candidates did not do all the necessary paperwork. That challenge will be heard on Labor Day, Monday, September 7, at 1 p.m.
This means that the three Green Party candidates for statewide state office will be on the ballot. The offices are Auditor, Treasurer, and Attorney General. Thanks to Dan Mohn for this news.
On September 4, Kanye West appealed his Arizona ballot access case to the Arizona Supreme Court. West v Clayton, cv20-0249. Thanks to Mark Seidenberg for this news.
The September 3 Arizona court ruling, saying an independent presidential candidate must not be registered into a ballot-qualified party, is unprecedented. Never before in history has any presidential candidate been kept off any ballot (general election ballot, or presidential primary ballot) on the basis of his or her voter registration partisan choice.
In general elections, even major party presidential nominees have sometimes qualified as independent candidates. Harry Truman qualified as an independent presidential candidate in 1948 in Louisiana and Mississippi, because the Democratic Parties of those states refused to list him on the general election ballot. If the Arizona 2020 Kanye West decision had been applied to Truman, Truman could not have been on the ballot in those states. Truman would have also qualified as an independent in Alabama, but he missed the May 1948 deadline. South Carolina at the time did not have government-printed ballots, but if it had, Truman would have tried to qualify in South Carolina as well.
In 1952, Dwight Eisenhower qualified as an independent presidential candidate in Mississippi. He was listed twice, both as an independent and as a Republican. Mississippi permits fusion. Eisenhower got far more votes as an independent than as a Republican.
In 1968, Hubert Humphrey qualified as the nominee of two minor parties in Alabama, because the Alabama Democratic Party wouldn’t put him on the ballot.