On June 27, U.S. Supreme Court Justice Anthony Kennedy said he will retire next month.

Justice Kennedy has not been a friend of minor party or independent candidate ballot access. The last time the U.S. Supreme Court mentioned minor party ballot access was in 2005, when five of the nine justices said helpful things about the issue. Justice Sandra Day O’Connor wrote a concurrence in Clingman v Beaver, saying “The State is itself controlled by the political party or parties in power, which presumably have the incentive to shape the rules of the electoral game to their own benefit…As such restrictions become more severe, and particularly where they have discriminatory effects, there is increasing cause for concern that those in power may be using electoral rules to erect barriers to electoral competition.” Justice Kennedy did not join this concurrence, although four justices either joined this concurrence, or joined the dissent which said very similar things.

Justice Kennedy also wrote the opinion in Arkansas Educational TV v Forbes, which said the Constitution permits public radio and television to sponsor debates that include only the Democratic and Republican nominees. And he joined the opinion in Timmons v Twin Cities Area New Party, which upheld the ability of states to ban letting two parties jointly nominate the same candidate.

Kennedy did dissent, however, in the 1992 case that said Hawaii could ban write-in voting, Burdick v Takushi.

On June 25, a U.S. District Court in the U.S. Virgin Islands said it would not now rule on whether independent candidate Positive Nelson should be on the November 2018 ballot. Instead, Nelson must seek relief from the territorial court. The Virgin Islands elects its governor and lieutenant governor as a team. The ticket had been rejected because the Lieutenant Governor candidate, Gary Udhwani, may not have been a registered voter when the petition was submitted. Udhwani had been a registered voter in the past, and his name was apparently purged without telling him. Also he collected some of the signatures, and the Virgin Islands law does not allow unregistered individuals to circulate a petition (although that policy violates the U.S. Supreme Court decision American Constitutional Law Foundation v Buckley).

If the territorial court gives no relief, the U.S. District Court will then take action. Nelson v Fawkes, 1:18cv-17.