On Sunday, September 30, U.S. District Court Judge Alison J. Nathan, an Obama appointee, refused to dismiss the lawsuit Common Cause New York v Brehm, s.d., 1:17cv-06770. The lawsuit had been filed in 2017, alleging that New York polling place officials frequently tell inactive votes who arrive at the polling place that they are not registered. Both federal law and New York law provide that when an inactive voter arrives at the polling place, he or she must be told about the chance to vote using an “affidavit ballot.” This term seems to mean the same thing as provisional ballot in other states. Here is the 30-page opinion. See the last section of the opinion, starting on page 25. The earlier part of the decision says the state’s laws are not in conflict with federal law, so the only part of the case remaining is the as-applied portion.

One reason for this problem is that in New York, the names of inactive voters do not appear on the poll book, the list of registered votes inside the precinct. The names do appear on the state’s computerized list of registered voters, but that is not much help at the polling place, because the state computerized list isn’t on hand in the precinct polling place.

The decision gives the plaintiffs a chance to prove that their allegations are correct, and keeps the case alive. Thanks to Rick Hasen for this news.

On October 1, the U.S. Supreme Court refused to hear George v Hargett, 18-76. This is the case over the meaning of the Tennessee Constitution and its provision on how many votes a proposed ballot measure needs to pass. The Tennessee Constitution says, “If the people shall approve and ratify such amendment by a majority of all the citizens of the state voting for Governor, voting in their favor, such amendment shall become a part of the Constitution.”

A U.S. District Court had interpreted the Constitution to mean that an amendment doesn’t pass unless a majority of the particular voters who voted for Governor voted “yes.” But the Sixth Circuit had reversed, and ruled it means just that the measure needs a number of “yes” votes that equals at least 50% of the total vote cast for Governor.

If the U.S. District Court opinion had prevailed, then every ballot would need to be examined, to compare how a particular voter voted for Governor and then how that same voter voted on the amendment.

A Siena College Poll released October 1 for the New York gubernatorial race shows Larry Sharpe, Libertarian nominee, at 2%. Assuming that 5,000,000 voters turn out to vote, 2% would be 100,000 votes, double the legal requirement that a party poll 50,000 votes for Governor to become qualified.

The Libertarian Party has never been ballot-qualified in New York in the past. The closest it ever came was 2010, when Warren Redlich received 48,386. Other states in which it has never been ballot-qualified are Minnesota, New Jersey, Pennsylvania, Rhode Island, Tennessee, and Virginia. Also the party’s qualified status in Georgia and Illinois has only been for statewide office, not district office. In Connecticut it is piece-meal, for some offices but not others.

In Arizona, California, Maine, Massachusetts, North Dakota, and Washington, even when a small party is ballot-qualified, it still has huge hurdles placing nominees on the general election ballot, because either it is too difficult for a candidate to get on the party’s primary ballot, or because the candidate in the primary must poll a very large number of votes to get on in November.