Eighth Circuit Sets Oral Argument in Case Over South Dakota Petition Deadline for Initiatives

The Eighth Circuit will hear Dakotans for Health v Johnson, 25-2940, on Tuesday, June 9. This is the case over the February petition deadline for South Dakota initiatives. The lower court had struck it down on free speech grounds, reasoning that petitioning is free speech activity, and excluding such petitioning from months in the late winter and early spring of election years violates the First Amendment.

An earlier South Dakota case on the deadline for initiatives had struck down the old November deadline (of the year before the election) under the same reasoning. That case was South Dakota Voice v Noem, 21-3195. The three judges in that case included James B. Loken, a Bush Sr. appointee, and Raymond Gruender, a Bush Jr. appointee. The upcoming hearing next month will be before those two judges, as well as Jane Kelly, an Obama appointee. Unlike many other circuits, the Eighth Circuit reveals in advance of hearings who the judges will be.

One cannot assume that because Judges Loken and Gruender struck down November of the year before the election, that they will necessarily be inclined to strike down February of the election year. Nevertheless, it seems encouraging that those two judges are on the panel. If the plaintiffs win this case, that will be a powerful precedent against early petition deadlines for new parties and independent candidates.

Steve Maviglio Files Paperwork to Begin Circulating a California Initiative to Repeal Top-Two

On May 8, Steven Maviglio filed paperwork with the California Secretary of State to begin an initiative petition to repeal top-two. It would restore the California Constitution the way it was during the years 2002 through 2010. Qualified parties would have the right to place their nominee on the general election ballot. Each party would be free to decide whether to let independents vote in its primaries.

Here is the website for the initiative. It reveals that leading Democratic Party leaders, and also some Republican Party leaders, support the initiative. The initiative would be on the November 2028 ballot if it gets enough valid signatures. The current requirement is 874,641 signatures, to be collected in ten months.

Maviglio was once named one of the most influential Democratic Party leaders in California. He has worked for several Speakers of the Assembly and also for former Governor Gray Davis. He has run initiative campaigns for two dozen initiatives.

If the initiative passed, write-ins in the general election for congress and state office would automatically be restored, because the part of the election law that bans write-ins for those office in November would no longer pertain to any actual election.

This is the second initiative to be filed to repeal top-two. The first one, in 2017, authored by Tom Palzer, a Republican, did not get enough signatures to get on the ballot.

U.S. District Court in Alabama Refuses to Let Alabama Draw New U.S. District Court Boundaries

On May 8, a 3-judge U.S. District Court refused to clear the way for Alabama to draw new U.S. House district boundaries. Allen v Milligan, n.d., 2:21cv-1530. Here is the six-page ruling, which says only the U.S. Supreme Court can take that step.

The state has now put the matter in the hands of the U.S. Supreme Court. Here is the state’s filing. Allen v Milligan, 25A1231.

Tennessee Redistricting Bills Allow a Later Petition Deadline for Independent Candidates for U.S. House

On May 4, four bills were introduced in the Tennessee legislature to draw new U.S. House district boundaries, HB 7001, 7002, 7003, and 7005. The bills also extend the petition deadline for independent candidates for U.S. House from March 10 to May 15. Furthermore, they provide that signatures may be collected anywhere in any county that is in the new district, regardless of whether the signer lives in the new district. Only 25 signatures are needed for independent candidates for either house of Congress.

As to independent candidates who were already on the ballot, the Secretary of State is giving each of them a chance to choose which district to run in, without the need for a new petition.

The Tennessee redistricting has already been attacked by at least three lawsuits.

An independent candidate who was already on the ballot, Pamela Moses, filed a federal lawsuit arguing that changing the districts at this point violates due process. She says that she had already been campaigning in the old district (the 8th) for two years, and the new districts will mean that she has wasted a large share of her campaign resources. She had obtained the list of registered voters in the old district and had reached out to them, but now much of that is wasted effort. Moses v Lee, w.d., 2:26cv-2533, filed May 8. The case is assigned to U.S. District Court Judge Mark S. Norris, a Trump appointee.