On June 14, U.S. District Court Judge John M. Gerrard issued a two-page order in Bernbeck v Gale, 4:18cv-3073, saying the Nebraska 10% petition requirement for non-presidential independent candidates is unconstitutional. This is not surprising, because on June 13, the state had notified the court that it agrees that the law is unconstitutional. Here is order.
UPDATE: here is a news story.
Here is another story.
On Thursday, June 14, the U.S. Supreme Court issued an opinion in Minnesota Voters Alliance v Mansky, 16-1435. Here is the opinion. The vote was 7-2.
Minnesota does not let anyone wear any “political badge, political button, or other political insignia” at the polls. The Court concluded this law is too vague, and too far-reaching, to be consistent with the freedom of speech clause in the First Amendment. The opinion suggests that a better law is California’s law, which only bans “the visible display…of information that advocates for or against any candidate or measure.”
The Minnesota lawsuit had been filed after some voters were told they could not wear buttons saying, “Please I.D. me.” Another plaintiff-voter was told he could not wear a T-shirt mentioning the Tea Party. The lower courts had upheld the law.
The dissent does not defend the Minnesota law, but says the U.S. Supreme Court should have sent the case to the Minnesota state courts to determine whether the state courts might construe the state law to be less restrictive.
The Michigan Court of Appeals has voted 2-1 to keep Matt Morgan off the Democratic primary ballot for U.S. House, district one. See this story. He will now attempt to obtain enough write-in votes in the August primary to be nominated. He had enough valid signatures, but his petition was invalidated because he used a post office address for himself on the petition forms, instead of his residence address.
No other Democrat tried to get on the ballot for that race, so the Democratic ballot will list no names for U.S. House.
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.
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.
