Nebraska 10% Petition for Independent Candidates to be Struck Down

Posted on by June 13, 2018
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On June 13, attorneys for the Nebraska Secretary of State asked a U.S. District Court to rule that the Nebraska petition requirement for non-presidential independent candidates is unconstitutional. The law requires signatures equal to 10% of the registered voters. When both sides agree in such constitutional cases, the judge always respects the unanimous views of the litigants. The case is Bernbeck v Gale, 4:18cv-3073.

The 10% petition requirement was passed in 2016, but not effective until after the 2016 election was over, so it will never have been in effect in any election. The state agrees that the old pre-2016 law will be policy, until the legislature revises the law. The law before 2016 required exactly 4,000 signatures for statewide office and U.S. House. The 2016 law requires approximately 125,000 signatures for statewide office, and approximately 42,000 signatures for U.S. House. It isn’t possible to say exactly how many signatures are required under the 2016 law, because the number of registered voters changes constantly, and the number would be determined as of the date of the registration tally closest to whenever the petition is submitted.

The 2016 bill had passed the legislature unanimously. It was part of an omnibus election law bill, and the 10% provision got no publicity at all. The lawsuit was filed by independent candidate Kent Bernbeck, who now plans to obtain 4,000 valid signatures to run as an independent for Treasurer. The petition deadline is September 1.

Michael Schaefer, Attorney who Fought to Save California Write-ins, Leads for Second Place in Board of Equalization Race

Posted on by June 13, 2018
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The most obscure partisan office in California is member of the Board of Equalization. California is divided into four districts, each one of which elects a member to that Board, which deals with taxation. In the Fourth District, attorney Mike Schaefer has a narrow lead for second place. He is a Democrat, although he has often run for office in the past as a Republican.

Schaefer is the attorney who won a landmark decision in the California Supreme Court in 1985, that said both the U.S. Constitution and the California Constitution require write-in space on the ballot for all office. That case was Canaan v Abdelnour.

Unfortunately, in 1992, the U.S. Supreme Court ruled 6-3 that the U.S. Constitution does not require write-in space on ballots. That case was Burdick v Takushi, and it upheld Hawaii’s ban on write-ins.

Then, in 1999, San Francisco held a mayoral runoff, and refused to allow write-in space on the ballot in the runoff. A write-in candidate sued, and the State Court of Appeals ruled in favor of the voter, based on the Canaan precedent. But in 2002 the State Supreme Court reversed, and said that write-ins are no longer protected in California, because of the Burdick decision. Edelstein v City and County of San Francisco, 56 P. 3d 1069. Schaefer was the attorney in that case also. Because of the Edelstein ruling, it was legally possible for the proponents of the California top-two system to eliminate write-in space on the November ballot for congress and partisan state office.

Schaefer won another interesting election law case (not involving write-ins) in 2000. He was a registered voter in Nevada, but he filed to run in a special U.S. House election in the adjoining part of California. California election officials refused to put him on the ballot, but on appeal, the Ninth Circuit said he should have been permitted to run, because the U.S. Constitution does not allow states to add to the qualifications to run for Congress, and forcing him to be a registered voter in California would be an impermissible qualification. Schaefer v Townsend, 215 F.3d 1031. California tried to persuade the U.S. Supreme Court to reverse Schaefer’s win, but the U.S. Supreme Court refused to hear the case. 532 U.S. 904 (2001).

Here are the election returns for Board of Equalization, 4th district. Schaefer is in second place, but all the votes haven’t been counted yet, and John F. Kelly is in third place and is only 7,000 votes behind Schaefer. Assuming Schaefer remains in second place, he will appear on the November ballot as the only opponent to State Senator Joel Anderson, a Republican. The Fourth District, based on Orange and San Diego Counties, leans Republican.

Minnesota Secretary of State Approves Statewide Candidate Petitions for Green, Independence, Grassroots, and Legal Marijuana Parties

Posted on by June 12, 2018
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The Minnesota Secretary of State has determined that petitions for statewide office for the Green, Independence, Grassroots, and Legal Marijuana Now Parties have enough valid signatures. Last week a similar decision was made for a Minnesota Libertarian statewide petition. Thanks to Oliver Steinberg for this news. The Green Party now has statewide candidates on the November ballot, or is a qualified party, in 25 states and the District of Columbia.