On August 3, the Eleventh Circuit issued an opinion in Independent Party of Florida v Secretary, 20-12107. It upholds the denial of injunctive relief for the Independent Party, and the Party for Socialism & Liberation, to place their presidential nominees on the ballot. The law says if the party is not recognized by the Federal Election Commission, it must submit a petition of 1% of the number of registered voters, which this year is 132,781 signatures. The Independent Party can’t possibly be recognized by the FEC because the FEC won’t give recognition to parties organized in only one state. However, both plaintiff parties are ballot-qualified in Florida.

The decision’s second sentence is, “Decades ago, we upheld a Florida law that required minor parties to submit a petition signed by 3% of registered voters to access the ballot in statewide elections.” The decision says that because of the 1983 decision in Libertarian Party of Florida v State, 710 F.2d 790, the current petition must be constitutional. The decision also says on page eight, “At that time, Florida offered minor political parties only one path to the ballot: submitting a petition signed by 3% of registered voters.” These sentences are not true. Between 1969 and 1999, Florida allowed unqualified parties to place their presidential nominees on the ballot with a petition of 1% of the registered voters. Florida never had a 3% petition requirement for president. The 1983 lawsuit had no connection to the presidential election. It was filed in 1982 and concerned office other than president. The Libertarian Party had been on the Florida ballot for president in 1980.

Furthermore, the decision fails to mention that in 2017, the Eleventh Circuit struck down Georgia’s 1% petition for president. Nor does it mention the 1985 Eleventh Circuit decision Bergland v Harris, which said that the Georgia 2.5% presidential petition was also likely unconstitutional (the Bergland panel remanded the case back to the U.S. District Court for more fact-finding, but no more preceedings were held because the legislature lowered it to 1%). Ironically, the same judge who wrote the Florida Libertarian decision in 1983 (which did not relate to presidential elections) also wrote Bergland v Harris. Both decisions were written by Judge Paul Roney, who is no longer living.

Another error in the new decision is that the Florida Libertarian Party in 1983 was not ballot-qualified. By contrast, the two plaintiff political parties in the current case, the Independent Party, and the Party for Socialism & Liberation, are ballot-qualified. There is no possible state interest in keeping a ballot-qualified party from nominating a presidential candidate. Florida law already prevents ballot crowding by its requirements for party qualification. There has never been any state, other than Florida starting in 2016, which said that a ballot-qualified party still couldn’t be on the ballot for President unless it submitted a petition. This point is completely absent from the opinion. The opinion is by Judge William Pryor (a Bush Jr. appointee), and signed by Judge Robin Rosenbaum (Obama), and Robert Luck (Trump). The decision only upholds the denail of injunctive relief; the issue of the law’s constitutionality is still to be determined.

The Illinois State Board of Elections is still trying to eliminate all the ballot access relief ordered by a U.S. District Court on April 23. On August 3, it filed a reply brief in Libertarian Party of Illinois v Cadigan, 20-1961. The brief says, “If the Board prevails in this appeal, it will have the authority to disqualify candidates who did not meet the statutory requirements for ballot access”, which presumably even includes the Libertarian and Green nominees for President and U.S. Senate. Of course at this point it would be too late for them, or any candidates, to file new petitions.

The state’s reply brief includes a list of candidates who filed to be on the 2020 ballot for federal and state office. The list is not final because over half the petitioning minor party and independent candidates have been challenged. Many of them will be removed. But even if none of the candidates for whom an objection is pending are removed, the Illinois November ballot will be woefully undercrowded, not overcrowded. If none of the candidates is removed, there will still be fewer than two candidates in the average Illinois legislative race.

Out of 140 legislative races, the number of legislative candidates will be, at most, 236. That means the average legislative race will have 1.7 candidates. In the 18 U.S. House races, there would be 41 candidates, for an average of 2.3 candidates per race. There would be no U.S. House race with more than three candidates. There would be no legislative race with more than three candidates, except possibly there would be four candidates for State Representative, 100th district.

For president, assuming the U.S. District order survives, there would be either six or seven candidates, depending on whether Kanye West’s petition is valid or not. For U.S. Senate, there would be five candidates. By contrast, in the 2020 Democratic presidential primary, there were 12 candidates.

Yet the state says the District Court order must be reversed “so that the voters will not be faced with a laundry list ballot”. It says, “Effectively removing all limitations overwhelms the ballot, creates unnecessary hurdles for viable candidates, and results in voter confusion.”

On June 21, the Seventh Circuit refused to stay the U.S. District Court order, but it did expedite the state’s appeal. The identity of the three judges handling this case is unknown.

On August 3, the Massachusetts Supreme Judicial Court issued a unanimous ruling in Brady v State Ballot Law Commission, SJC-12979. The Court explained why Helen Brady, Republican candidate for U.S. House, 9th district, should be on the September 1 primary ballot. She submitted more than the needed 1,000 signatures of registered Republicans and registered independents. All of her signatures were electronic. But they didn’t follow precisely the new directions for electronic signatures that the same court had approved in April 2020. The Ballot Law Commission had removed her from the ballot, but on July 10, the Court had put her back, without explanation. The August 3 decision explains the reasoning.

The decision has very good general language about ballot access. Thanks to Rick Hasen for this news.