On August 31, the Montana Green Party nominees for congress and state office filed this reply brief in the Ninth Circuit, in Davis v Montana Democratic Party, 20-35734. It is only 18 pages and is a good read.
Reply
The American Shopping Party is ballot-qualified in Hawaii. It has until September 4 to decide whether to nominate anyone for president. Its officers are considering nominating Rocky De La Fuente for president and Kanye West for vice-president, the same ticket that the American Independent Party of California is running.
On August 31, an Arizona voter, Rasean Clayton, sued Kanye West, becasue he is circulating an independent presidential petition in Arizona and he is registered as a Republican in Wyoming. Also, all but one of his candidates for presidential elector in Arizona are registered Republicans. Clayton v West, Maricopa County Superior Court, cv2020-010553. The suit claims the candidates must be registered independents.
Arizona election law 16-341A says, “Any qualified elector who is not a registered member of a political party that is recognized pursuant to this title may be nominated as a candidate for public office” via an independent petition. It seems that West’s registration is irrelevant, because he is not a member of the Arizona Republican Party, because obviously he doesn’t live in Arizona.
As to his candidates for presidential elector, they are free to change their registration from Republican to independent on or before September 4, the date the petition is due and the date it will be submitted. The case has a status conference on September 2. It is peculiar that the plaintiff sued West and his electors, but did not sue any election official.
Many independent presidential candidates in history have been members of the Republican or Democratic Party. Republicans included Robert La Follette in 1924, and John B. Anderson in 1980. Democrats included Lyndon LaRouche, George Wallace, and Eugene McCarthy in 1968. McCarthy appeared on the Arizona November 1968 ballot as a presidential candidate, even though he was not seeking the presidency in the general election and did not ask to be put on the ballot.
On September 1, the Florida Secretary of State posted the November 2020 candidate list. Here is a link. It includes seven presidential candidates, including Gloria La Riva, the presidential nominee of the Party for Socialism and Liberation. This is somewhat surprising, because the PSL did not win injunctive relief last month in its ballot access lawsuit.
On September 1, U.S. District Court Judge John G. Koeltl, a Clinton appointee, refused to enjoin the new, more severe definition of a qualified party that was created in New York in April 2020. The old vote test was that a group had to poll 50,000 vote for Governor. The new test, effective in November 2020, is that it must poll the greater of 2% or 130,000 votes for the office at the top of the ballot, every two years. This means President this year and Governor in 2022. SAM Party v Kosinski, s.d., 1:20cv-323. Here is the 44-page opinion.
The opinion does not consider the constitutionality of the new statewide petition requirement, which was raised this year from 15,000 to 45,000 signatures. Footnote one says that issue is not before the court.
The opinion relies on precedents that are not directly relevant to New York. All of the precedents cited are from states in which, if a party failed to meet the vote test, there was a method for it to regain its party status before the next election. These precedents are from Oklahoma, Arkansas, and North Carolina, all of which have a party petition that can be carried out in an odd year as well as an even year. Judge Koetl didn’t seem to grasp the point that New York is one of only eleven states that lacks any such procedure. He also relies on Jenness v Fortson, the 1971 U.S. Supreme Court decision that upheld the Georgia 5% petition for the nominees of unqualified parties. At the time, Georgia also defined a party as a group that had polled 20%. Although the U.S. Supreme Court mentioned the 20%, that was not part of the Jenness lawsuit. The Socialist Workers Party, which brought Jenness, did not mention the 20% vote test in any of its pleadings, so anything the U.S. Supreme Court said in Jenness about Georgia’s party definition was dicta.
Most frustrating about the decision is the list of state interests for the new vote test. The opinion says on pages 32ff that the chief state interest is the new public financing system, and the desire not to spend government resources on minor party candidates who might have weak voter appeal. But then footnote 9 on page 39 admits that, under a Second Circuit opinion, states don’t need to provide public funding for all candidates on the ballot. This footnote undercuts the whole rationale for the new vote test. The only other state interests cited are the usual boilerplate arguments about keeping candidates off the ballot if they lack a modicum of voter support.
The plaintiffs are the SAM Party and the Working Families Party. The SAM Party objects to the new vote test because it says it doesn’t want to run a presidential candidate, so will be dumped off the ballot for certain in November 2020. The judge merely says that the SAM Party has no good reason not to run a presidential candidate. Of course it is up to the party, not the government, to make a decision like that.
Finally, page 42 says the issue of injunctive relief at this point is premature, as applied to the Working Families Party, because it might meet the vote test in November 2020.