California State Senator Ben Allen introduced SCA 21 in March, to somewhat change the California top-two system. It is a proposed Constitutional amendment to say that even a person who places second in June cannot advance to the November general election unless that person polls at least 40 write-ins in June.
The bill had been scheduled to be heard in the Senate Elections Committee on May 1, but Senator Allen has removed the bill from the agenda for that hearing date.
On April 18, the Nebraska Senate Government, Military and Veterans Affairs Committee killed SB 969. The bill would have reduced the number of signatures for a non-presidential independent candidate from 10% of the number of registered voters, to exactly 4,000. The bill would have undid the 2016 law that hugely increased the independent petition requirement.
Some supporters of the top-two primary say that Nebraska’s legislature works better than the legislatures of most states. Nebraska is the only state in which elections for the legislature are non-partisan. But the behavior of the Nebraska legislature, making it virtually impossible for an independent candidate to get on the ballot in Nebraska for a partisan office, shows that just because the Nebraska legislature is technically non-partisan, it is no friend of independent candidates.
It is somewhat likely that a lawsuit will be filed soon to overturn the 10% petition requirement. One was already filed, but then the plaintiff, State Senator Bob Krist, decided not to be an independent candidate this year, so he withdrew the lawsuit. The new lawsuit will be different than the Krist lawsuit.
On April 20, U.S. District Court Judge Edward J. Davila, an Obama appointee, dismissed Koller v Harris, n.d., 5:16cv-7069. This is the case filed in 2016 by a California Democratic presidential elector who wanted to vote for someone other than Hillary Clinton in the electoral college. He said that the California law, requiring him to vote for the presidential candidate who got the most popular votes in the November election, violates the U.S. Constitution.
Judge Davila did not decide the constitutional issue. He said the case is moot, and he also said the plaintiff lacks standing. The Davila opinion is in error as to the mootness issue. Election law constitutional cases don’t become moot because the election is over. The decision acknowledges this point, but erroneously says that the particular plaintiff must be in a position to again have a problem with the challenged law in a future election.
In Moore v Ogilvie, the U.S. Supreme Court first announced the principle that election law constitutional cases are not moot just because the election is over, whether the particular plaintiff is likely to have a problem with that law in a future election or not. In Richardson v Ramirez, 418 U.S. 24 (1974), Chief Justice William Rehnquist commented about the holding in Moore v Ogilvie. He said that the plaintiff in Moore v Ogilvie was not likely to have a problem in a future election with the law he challenged. Rehnquist wrote, on page 35, “Unlike Moore v Ogilvie, 394 U.S. 814 (1969), in which the particular candidacy was not apt to be revived in a future election…”.
Judge Davila did not mention Richardson v Ramirez, and probably he wasn’t even aware of it.
On April 30, U.S. District Court Judge Philip Brimmer refused to let certain opponents of Congressman Doug Lamborn intervene in Lamborn’s case against the Colorado law banning out-of-state circulators. He said he is sympathetic to the position of the intervenors, but that they have nothing to add to the case. The proposed intervenors are the people who challenged Congressman Lamborn’s petition.
The intervenors then immediately asked the Tenth Circuit to force Judge Brimmer to let them intervene. In the Tenth Circuit, the case is In re Baldini, 18-1179.
The Albuquerque Journal has this op-ed by Sandra Jeff, the Libertarian Party candidate for Secretary of State of New Mexico, criticizing the straight-ticket device. New Mexico does not use a straight-ticket device, but the incumbent Secretary of State, who is running for re-election, has threatened to bring it back without any legislative authorization. Thanks to Rick Lass for the link.
