On the evening of September 15, the California Assembly passed SB 568, which moves the primary date from June to March. The bill applies to all primaries, midterm and presidential alike, starting after 2018.
The bill still must get a vote in the Senate, because the versions in the two houses aren’t identical. That is expected later in the evening of September 15.
Law Professor Lawrence Lessig is raising money for a proposed lawsuit against the electoral college system for electing the president. He writes “In a democracy, all votes should count equally. In our democracy, when voting for the president, they do not.” Here is an article he wrote for Daily Beast. His goal is to raise $250,000.
Federal and state courts have faced somewhat similar lawsuits in the past, and they have always lost, even in the U.S. Supreme Court. In 1966, the state of Delaware filed a request directly with the U.S. Supreme Court to overturn the system, but the Court refused to hear it. Delaware v New York, 385 U.S. 895.
In 1967, some Mississippi voters sued to overturn Mississippi’s practice of choosing all presidential electors at-large, but they lost in a 3-judge U.S. District Court. Penton v Humphrey, 264 F.Supp.250.
In 1968, some Virginia voters challenged Virginia’s law that provides all the state’s electors should be elected at-large. Williams v Virginia State Board of Elections, 288 F.Supp.622 (1968). The three-judge court upheld the system. The U.S. Supreme Court then summarily affirmed that decision, 393 U.S. 320 (1969).
In 1978, some Alabama voters filed a similar challenge, but they lost in U.S. District Court and the Fifth Circuit, and the U.S. Supreme Court refused to hear the case. Hitson v Baggett, 446 F.Supp. 674; 580 F.2d 1051; 439 U.S. 1129.
In 1980, some Louisiana voters filed a similar challenge in state court, but lost. Lowe v Treen, La.App., 393 So. 2d 459 (1980).
The problem faced by such lawsuits is Article II, section one, which says, “Each state shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” That provision is very specific, and thus it overrides the general language in the Fourteenth Amendment for equal protection.
Dennis Richardson, Oregon’s Secretary of State, and a Republican, favors moving Oregon’s presidential primary from May to March. See this story. He proposes that the primary for other office would continue to be in May.
In 2016, the Nebraska legislature increased the non-presidential independent petition requirement from 4,000 signatures to 10% of the number of registered voters. Except in Ballot Access News, that change got no publicity. Now, however, the Associated Press has published a story about the 2016 action.
Every petition requirement for independent candidates, and new parties, in excess of 5% of the number of registered voters, has always been held unconstitutional. It is somewhat likely that some independent candidate will sue to overturn the Nebraska law. Not only is 10% too high; there is also the point that Nebraska’s new party petition is 4,880 signatures, and it makes no sense to require so many more signatures for an independent candidate than for an entire new party.
On September 14, the California Assembly passed SB 149, which requires presidential primary candidates to reveal their income tax returns. The vote was 54-23. Although it had already passed the Senate, it must return there because the two houses passed different versions.
SB 568, the bill to move the primary in all years from June to March, still has not been brought up in the Assembly, as of 6:25 p.m. Thursday, September 14. But the legislature is still meeting. UPDATE: the bill was not brought up on Thursday, but it will be brought up on Friday, September 15, the last day of the session. FURTHER UPDATE: the Senate passed the bill on September 15 by 27-11. The bill now goes to the Governor.
