Puerto Rico will hold a presidential primary for the Democratic Party on July 12. The original plan had been to hold it on April 26, but it was postponed due to the health crisis. Thanks to Josh Putnam for this news.
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On May 22, the Eleventh Circuit heard Cowen v Raffensperger, 19-14065. This is the case filed in 2017 that challenges the Georgia petition requirements for U.S. House, for independent candidates, and for the nominees of parties that polled less than 20% of the vote for president or governor in the last election. The law is so strict (a petition of 5% of the number of registered voters) that no petitioning candidate for U.S. House has successfully petitioned since 1964, and no minor party candidate for U.S. House has ever succeeded. The 1964 instance was an independent candidate. Back in 1964, the petition deadline was in October of the election year and the signatures weren’t checked. Nowadays the law requires approximately 20,000 signatures inside any particular U.S. House district, and the deadline is in July, and a filing fee of over $5,000 must also be paid.
The 5% petition law has survived because in 1971, the U.S. Supreme Court ruled in Jenness v Fortson that petitions of 5% are constitutional. The Jenness decision noted that the 5% petition requirement (which then applied to statewide candidates as well as district candidates) had been successfully used in both 1966 and 1968. Therefore the U.S. Supreme Court in 1971 said a 5% petition didn’t seem onerous and did not freeze the status quo.
However, in 1985, the Eleventh Circuit had ruled in Bergland v Harris that Jenness v Fortson does not mean that the Georgia 2.5% presidential petition (it had been lowered in 1979 from 5% to 2.5%) was necessarily constitutional. It remanded the case back to the U.S. District Court, with instructions to apply the balancing test mandated by Anderson v Celebrezze, a U.S. Supreme Court case issued in 1983. No further court procedings were held in the Bergland case, because in 1986 the legislature voluntarily lowered the statewide petition, for president and all other statewide offices, to 1%.
At the hearing on May 22, 2020, Judge R. Lanier Anderson suggested that the 1985 Bergland decision is binding, which means that Jenness v Fortson does not control the outcome, and that the law should be evaluated on whether it is really needed for a state purpose, and that the failure of any U.S. House candidate to meet the requirement since 1964 should be taken into account. Judge Adalberto Jordan also spoke, and in the interchange of ideas, the attorney for the Libertarian Party brought out that Jenness v Fortson did not deal with the cumulative effect of the petition plus the $5,000 filing fee. The filing fee was not an issue in Jenness. Also the Libertarian attorney was able to show that there is now an equal protection problem for the law, because Libertarians for statewide office need no petition, whereas Libertarians for U.S. House need a huge petition. That was not true in 1971 when Jenness was decided.
Soon the Eleventh Circuit website will post a link so that anyone can listen to the argument, which lasted 30 minutes. When that happens, this post will be amended to include that link.
U.S. District Court Judge John G. Koeltl has set a briefing schedule in the ballot access case filed by the SAM Party. This case is not related to the health crisis. Instead, it is a challenge to the New York ballot access law passed on April 1, 2020, which changes the definition of “political party” from a group that got 50,000 votes for Governor, to one that got 130,000 votes or 2%, whichever is greater, for the office at the top of the ballot every even-year. Parties that fail to poll 130,000 votes for President in November 2020 (or 2%, whichever is greater) will go off the ballot.
The SAM Party has been ballot-qualified in New York since November 2018. It points out that it has no intention of running anyone for president in 2020.
SAM filed its brief on May 18. The state’s brief is due June 25. The SAM Party’s reply brief is due July 15.
On May 21, by 5-2, New York’s highest state court, the Court of Appeals, reversed the lower state courts and removed Rebecca Seawright from the Democratic primary ballot. She is an incumbent Assemblymember in Manhattan, and would have been an overwhelming favorite for re-election if she were on the ballot. Here is the opinion. Thanks to Joe Burns for the link.
At the Libertarian virtual presidential convention that starts on May 22, one delegate, John V. LaBeaume, plans to nominate Congressman Justin Amash for president, even though Amash has said he doesn’t seek the nomination.
There is precedent for parties to nominate presidential candidates who say they are not seeking the nomination. In 1952 the Democratic National Convention nominated Adlai Stevenson for president, even though he had said vehemently before the convention that he did not want the nomination. However, he was Governor of Illinois at the time, and the convention was in Chicago, so he addressed the convention on the first day in his role as host governor. His speech was so well-received, the convention nominated him despite his expressed wishes.
In 1940, President Franklin D. Roosevelt did not attend the Democratic convention, which was also in Chicago. He had U.S. Senator Alben Barkley read this statement on the first day: “I have never had, and have not today, any desire or purpose to continue in the office of President, to be a candidate for that office, or to be nominated by the convention for that office. I wish in earnestness and sincerity to make it clear that all of the delegates in this convention are free to vote for any candidate.” The convention did nominate him for a third term.