On June 24, U.S. District Court Judge Matthew Leitman refused to stay his own order of June 11 in SawariMedia LLC v Whitmer, e.d., 4:20cv-11246. The order had required Michigan to give some ballot access relief to initiative proponents, either a reduction in signatures, or a later deadline. Here is the order of June 24. The state has appealed to the Sixth Circuit.
The Eighth Circuit will hear Miller v Thurston, 20-2095, on Wednesday, July 8. This is the case on whether Arkansas initiatives should get ballot access relief due to the health crisis. The U.S. District Court had ruled in favor of the initiative proponents, and the state is appealing.
On June 10, U.S. District Court Judge Mark A. Kearney, an Obama appointee, denied injunctive relief to an independent candidate for U.S. House in Pennsylvania. The candidate-plaintiff, Orlando Acosta, had sued over the requirement that he collect 5,752 signatures to get on the ballot in the Third District. He has asthma and is in a wheelchair, and he said the health crisis made it impossible for him to collect signatures. Acosta v Wolf, e.d., 2:20cv-2528.
Judge Kearney wrote that Acosta needs 1,000 signatures. His opinion has a footnote to the election code reference, but it is to the part of the law that says primary candidates for U.S. House need 1,000 signatures. The order does not mention that independent candidates need a petition of 2% of the winner’s vote in the last election.
Judge Kearney also cited three precedents that he said denied relief to candidates due to the health crisis. But in two of the cases he cited, the court cut the number of signatures. He cited Garbett v Herbert, a Utah case in which the U.S. District Court cut the number of signatures for primary candidates. He also cited Libertarian Party of Illinois v Pritzker and said, “The district court upheld the state’s ballot access framework”, but actually the court cut the number of signatures down to 10% of the normal requirement.
In the third case cited, Murray v Cuomo, a U.S. District Court in New York had denied injunctive relief to a primary candidate for U.S. House. But the reason she lost the case is that all her signatures were collected by someone who is not a registered Republican. The plaintiff, Scherie Murray, had collected 906 signatures, and she only needed 375. But all of her signatures were invalid because her circulators weren’t members of the Republican Party. New York law doesn’t permit non-members to circulate primary petitions.
The Pennsylvania decision completely ignores the point that Pennsylvania requires more signatures for the plaintiff, than the state requires for statewide independent candidates. Pennsylvania statewide candidates need exactly 5,000 signatures, but candidates in the 3rd U.S. House district need 5,752. The U.S. Supreme Court ruled in 1979 in Illinois State Board of Elections v Socialist Workers Party, 440 US 173, that it is unconstitutional for a state to require more signatures for a district office than a statewide office.
Acosta is a pro se plaintiff. The judge said if he files an amended complaint, his case can survive.
On June 24, U.S. District Court Judge Kristen Baker, an Obama appointee, declined to give injunctive relief to various independent candidates in Arkansas. The lead plaintiff, Dan Whitfield, running for U.S. Senate, needed 10,000 signatures by May 1, and the evidence showed that he would have succeeded except for the health crisis. Nevertheless, the opinion says the situation he faced was not “severe.”
Whitfield had also asserted an equal protection claim, that because Arkansas only requires 1,000 signatures for independent presidential candidates, there is no reason to require him to collect 10,000. The opinion says, “The argument that candidates for these offices are similarly situated is not well developed in the record evidence or briefing submitted by Mr. Whitfield or Mr. Fults, nor is it addressed by Secretary Thurston.” Because the case hasn’t yet reached a decision on declaratory relief, this claim can receive more evidence later in the process.
Whitfield will appeal. Because no Democrat is running for U.S. Senate in Arkansas this year, if Whitfield is unable to win on appeal, the only candidates for U.S. Senate on the November ballot will be incumbent Republican Tom Cotton, and the Libertarian Party nominee.
Here is the 51-page opinion. There are also ten pages of Exhibits. The opinion says that it is not necessarily true that the 10,000-signature requirement is constitutional. It says on page 34, “The Court rejects Secretary Thurston’s legal argument on this point as overly simplistic.” The state had pointed out that requiring 10,000 signatures for new parties (for office other than president) is constitutional, and therefore the independent requirement must also be constitutional, but the order says, “The Court determines that a requirement may be constitutional as applied to a political party — with likely vaster resources, membership, and levels of experience and a rolling as opposed to fixed 90-day window for collection — and unconstitutional as applied to an individual and independent candidate.”
UPDATE: here is a news story.
On June 25 at approximately 1:30 p.m eastern time, the U.S. Supreme Court refused to intervene in Thompson v DeWine, the case over ballot access relief for Ohio initiatives. The U.S. District Court had granted relief, but the Sixth Circuit had reversed. This was the first case in the U.S. Supreme Court over ballot access in connection with the health crisis.
