On November 17, the Ninth Circuit issued a four-page opinion, upholding the California Secretary of State’s refusal to allow the Independent Party to file as a political body. Independent Party v Padilla, 16-15895. In California, new parties generally qualify for the ballot by persuading approximately 60,000 voters to register with that party. In order for everyone to know how many registrants such groups have, the law allows such groups to file as a “political body”, and then county election officials keep a tally. But no one can know how many registrants the Independent Party has, because the Secretary of State refused to allow the group to become a political body. He relied on a law that says no two parties can have names that are so similar as to cause confusion. The American Independent Party has been on the ballot in California since 1968, so Secretary of State Alex Padilla said no party can exist named “Independent Party.”

The decision ignores the fact that California permitted Americans Elect Party to qualify in 2011. One wonders why that name was permitted, given that both the American Independent Party and Americans Elect used the word “American”. The decision ignores the evidence that showed that 44 states have at one time or another permitted two parties to be on the ballot even though they shared a common word in their name. Mostly, these were parties that shared the word “socialist.” The decision also ignores the evidence that in recent decades, a ballot-qualified party named “Independent Party” has been on the ballot in Arkansas, Connecticut, Delaware, Florida, Hawaii, Louisiana, Maryland, New Mexico, North Carolina, Oregon, South Carolina, and Utah.

The decision ignores precedents from the California Supreme Court in 1896 that allowed both the National Democratic Party and the Democratic Party to be on the ballot; by the Oregon State Court of Appeals that said both the Socialist Party and the Freedom Socialist Party could be on the ballot; by the Fifth Circuit that said Mississippi must let the National Democratic Party be on the ballot even though the Democratic Party was on the ballot; and by a U.S. District Court in Pennsylvania that said both the Socialist Labor and the Socialist Workers Party could be on the ballot.

The decision says that if the Independent Party were on the ballot, that would cause confusion with independent presidential candidates, who have the ballot label “independent.” But the decision ignores the evidence that the Independent Progressive Party was ballot-qualified 1948-1954 and that did not seem to cause any confusion with independent candidates. The decision is unsigned and will not be published, but the three judges on the case were Ronald Gould (a Clinton appointee), Mary Helen Murguia (an Obama appointee), and James E. Gritzner (a Bush Jr. appointee, visiting from Iowa).

On November 19, Alabama’s largest newspaper, and two other major newspapers, have an identical front page editorial urging voters to vote for Doug Jones, the Democratic nominee. The editorials also say if the voter cannot do that, the voter should cast a write-in vote. See this editorial from the Birmingham News, which is also in the Mobile Press-Register and the Huntsville Times.

It is conceivable that Roy Moore could change his mind and withdraw. There are precedents from Minnesota and New Jersey that the ballots could be reprinted, with a Republican Party substitute, even though some voters have already voted absentee. If Alabama election laws forbid that, the legislature could theoretically be called into special session to pass an emergency bill authorizing late substitution in case of a late withdrawal. But none of that can happen unless Moore withdraws first.

If Moore does withdraw, justice requires that the Republican Party should be permitted to substitute a new nominee.

A Gravis Poll released November 17 shows that Jones has 47%; Moore has 42%; and undecided or write-in has 11%.