Another California Bill to Change the Rules for Recalls

Posted on by August 24, 2017
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Two previously-introduced election law bills in the California legislature have been amended to change the rules for recall petitions.  See this story.  The authors of the bills, AB 132 and SB 117, are Democrats who hope to prevent the recall of State Senator Josh Newman.  The recall petition already has enough valid signatures, but the bills would let voters remove their names from the recall petition.

The State Court of Appeals in Sacramento already invalidated another such bill, SB 96, in the lawsuit Howard Jarvis Taxpayers Association v Padilla.  That decision said SB 96 is invalid (at least as to the recall provisions) because the State Constitution requires that all bills have only a single subject, and SB 96 was a budget bill.

Assuming AB 132 or SB 117 are signed into law, there is still a very strong legal case against them, because courts have ruled that it violates due process to stiffen ballot access rules right in the middle of a petition drive.  This instance is even worse, because the petition is already submitted and verified.  Thanks to Jim Riley for the link.

U.S. District Court Upholds Pennsylvania Sore Loser Law as Applied to Presidential Primaries

Posted on by August 24, 2017
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On August 21, U.S. District Court Judge John E. Jones, a Bush Jr. appointee, upheld the decision of Pennsylvania’s elections department last year to exclude Rocky De La Fuente from the general election ballot, on the grounds that De La Fuente had run in the Democratic presidential primary.  De La Fuente v Cortes, 1:16cv-1696.  Here is the 23-page decision.

The decision did not even acknowledge the major points made by De La Fuente.  The decision says that because the U.S. Supreme Court upheld California’s similar law in 1974 in Storer v Brown, therefore Pennsylvania was correct to bar him from the general election ballot.  But Storer v Brown did not relate to presidential elections.  The decision does not even mention the point that the true candidates in a presidential election are the presidential elector candidates.  Nor does it mention the point that no state’s presidential primary actually nominates anyone.  Most of the decision deals with procedural points and says that De La Fuente has standing.  The part of the decision on the merits is only five pages long.

Although the decision mentions U.S. Term Limits v Thornton, the 1995 U.S. Supreme Court ruling saying states cannot add to the constitutional qualifications for federal office, it merely says that the issue in that case was different.  It does not grapple with the point that the principle is the same.  In the term limits case, the Supreme Court said states can’t keep someone off the ballot because of his or her prior political behavior.  That principle should apply to sore loser laws for federal office as well.  Furthermore, Jones wrote that in the term limits case, the Arkansas law “placed an outright ban on candidates who had already served three terms in the House.”  That is not true.  The Arkansas law let such candidates run for re-election; they merely had to be write-in candidates.

The decision also upholds a Pennsylvania law that says no one can circulate a primary petition if the circulator is not a member of the candidate’s party.  A U.S. District Court in Connecticut had struck down an identical law in Connecticut last year, and the new Pennsylvania decision does not mention the Connecticut precedent.  It does mention a New York precedent that upheld a similar restriction.

U.S. District Court Hears California “Disobedient Presidential Elector” Case

Posted on by August 24, 2017
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On August 17, U.S. District Court Judge Edward Davila heard Koller v Brown, the case that challenges the California law telling presidential electors that they must vote in the Electoral College for the presidential candidate who carried California.  The state argued that the case is moot, because the 2016 election is over.  The case is Vinz Koller v Brown, n.d., 5:16cv-7069.

Courts have ruled that cases capable of repetition, in which circumstances makes it impossible to adjudicate the case in a short period of time, are not moot.  For example, women who challenge abortion restrictions and who are pregnant when filing the case cannot lose the case on the grounds that the pregnancy is over while the case is still proceeding and therefore it is moot.  The U.S. Supreme Court has also applied that logic to ballot access constitutional challenges.  Frequently the election is over when the court decides the ballot access issue.  So, attorneys for the California 2016 Democratic presidential elector who filed the case argued that this case also fits the mootness exception.  Judge Davila seemed open to that argument.  The hearing lasted almost an hour.  A decision on whether the case should be dismissed will be released in the coming weeks.

Six Months Has Passed Since Seventh Circuit Heard Full-Slate Case

Posted on by August 24, 2017
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The Seventh Circuit held oral argument in Libertarian Party of Illinois v Scholz on February 24, 2017, and still hasn’t released its decision.  This is the case in which the U.S. District Court last year struck down the Illinois law requiring newly-qualifying parties to run a full slate of candidates.  The state is trying to get that decision reversed.