The Eleventh Circuit will hear Wilding v Democratic National Committee on Tuesday, December 11, in Miami. This is the case filed by supporters of Bernie Sanders who had contributed to the Democratic Party. The plaintiffs argue that the party broke its own rules in 2016 by giving aid to Hillary Clinton in her quest for the Democratic presidential nomination. The U.S. District Court had dismissed the case, and the Sanders supporters then appealed. The argument will be in Miami.

On October 3, attorneys for the California Secretary of State filed this letter with the Ninth Circuit, for the pending lawsuit De La Fuente v Padilla, 17-56668. The California lawsuit concerns the independent presidential petition for ballot access, which in 2016 required 178,039 valid signatures, due August 12. De La Fuente filed the lawsuit in 2016, arguing that the California law is too harsh. The U.S. District Court upheld the law and De La Fuente is appealing to the Ninth Circuit.

On September 6, the Sixth Circuit enjoined Michigan’s statewide independent petition requirement of 30,000 signatures, due July 19. The Sixth Circuit said “the burden is caused by the combination of (1) the amount of signatures Michigan requires — 30,000, or about 1% of ballots cast in the prior election of an attorney general and, (2) the timing of the collection and filing of those signatures — a candidate has 180 days to collect signatures that are to be filed by 110 days before the general election.”

De La Fuente then notified the Ninth Circuit of the Michigan decision from the Sixth Circuit. In response, attorneys for California submitted their letter. It implies that the Michigan decision should not influence the Ninth Circuit because the Michigan law had an early petition deadline, relative to when the major parties nominate their candidates. The California letter also says that in California, the presidential primary is in June, and the independent deadline in 2016 was August 12. But the date of the presidential primary is irrelevant. The major parties do not choose their presidential nominee in the California presidential primary. They choose the national ticket at the national convention, which in 2016 was July 25-28. Also the California Secretary of State’s letter says nothing about the fact that the Sixth Circuit opinion was substantially based on the fact that only two independent statewide petitions had succeeded in Michigan since the Michigan procedure was created in 1988. The two successes were 1992 and 2004. But the California independent presidential petition has not been used successfully since 1992, an even worse record than the Michigan record of successful uses of the procedure.

Earlier this year, the South Dakota petition deadline for newly-qualifying parties, which was in late March, was held unconstitutionally early in U.S. District Court. The case was Libertarian Party of South Dakota v Krebs, civ 4:15cv-4111. According to a federal law passed in 1976, when plaintiffs sue a state over voting rights (including ballot access), and win, the state must pay the attorney fees for the plaintiffs.

South Dakota did not appeal the 2018 decision, striking down the deadline, but it did contest the amount of attorneys fees that plaintiffs claimed for their attorneys, who are on the staff of the ACLU. On October 2, 2018, the U.S. District Court adjudicated the proper amount of attorney fees to be $612,045. The case lasted three years and was made especially complicated because, twice, the state partially liberalized the law while the lawsuit was underway. Every time the law changed, the issues changed and new briefs were needed.

During the lawsuit, the state had relaxed the new party petition deadline from March to July, but only if the new party were only interested in running for president and the lesser statewide executive positions. In the end, though, the deadline was held unconstitutional also for parties that wanted to run for Congress, legislature, and Governor. Here is the 10-page decision explaining the basis for the amount of filing fees. The state had argued that if the plaintiffs (the Libertarian and Constitution Parties) had chosen attorneys who reside in South Dakota, the award of attorney fees would have been much lower, because attorneys inside South Dakota charge much lower hourly rates than in the states in which the two ACLU attorneys live. But the judge declared that it was reasonable for the plaintiffs to hire experts from outside South Dakota, because the case was very complicated. Thanks to Kurt Evans for this news.