On September 18, Michigan Governor Rick Snyder signed HB 4892, which makes it possible for candidates in four particular Michigan cities to run for local office this year, even though they missed the filing deadline. Generally these candidates were the victim of misinformation for local election officials.
On September 20, the Eighth Circuit heard Libertarian Party of Arkansas v Martin, 16-3794. The issue is the deadline for a newly-qualifying party to hold its nominating convention. The U.S. District Court had struck down the old law that said newly-qualifying parties must nominate all their non-presidential nominees several months before the major party primaries. Afterwards, the 2017 session of the legislature had passed a new law, letting such parties nominate up until primary day. However, the convention parties had to submit their certificates of nomination by noon on primary day. Here is the link to hear the oral argument.
The state had appealed the U.S. District Court decision. A few days before the Eighth Circuit hearing, the judges had asked both sides to discuss whether the case is now moot. The state spoke first and said the case is moot. One of the judges asked about the possibility that if the case is moot, and never subject to appellate review, what will happen if the legislature in the future repeals the new law and makes the deadline more restrictive again? The attorney for state said there is no evidence that that would happen. The attorney for the state only used up seven minutes of his time, even though he was entitled to fifteen minutes.
Then the attorney for the Libertarian Party spoke. He argued passionately that the new law does not carry out the U.S. District Court opinion, because forcing the newly-qualifying party to submit the names of its convention nominees by noon on primary day (a Tuesday) does not really give such a party the chance to make its nominations at the same time that the major parties are making their nominations. A convention on Tuesday would need to work very quickly in the morning, to give the party time to drive to various county seats and the state capitol to submit the certificates. In reality, the convention would need to be several days earlier. The attorney for the Libertarian Party also said that no one in the legislature consulted with the Libertarian Party when it drafted the 2017 law.
In rebuttal, the attorney for the state said that the new law is exactly what the party had asked for. During rebuttal, one judge asked the attorney for the state about the Arkansas history of evading constitutional ballot access wins. Arkansas had had its independent candidate petition deadline struck down in 1975, and 1977, and 1988, and again virtually struck down early in 2017. These repeated lawsuits were necessary because even after the state lost the case, it would forget about the old decision and re-enact the unconstitutional deadline. In response, the attorney for the state acknowledged this history, but said it was only a history related to independent candidates, not minor parties. The time for both sides then expired. Actually, though it was not brought up at the oral argument, the Arkansas legislature had treated minor parties the same way. The deadline for minor party petitions was struck down in 1977, and again in 1996, and yet again in 2006, because, just as with independent candidates, the state would lose a case but then after a few years re-enact the same bad laws all over again, for minor parties as well.
On May 19, the Oregon Independent Party announced that it will let independent voters participate in its primary in 2018, just as it did in 2016. The Democratic and Republican Parties of Oregon do not permit independents to vote in their primaries. Oregon’s other ballot-qualified parties are not entitled to their own primary, and nominate by convention. The Independent Party qualifies for a primary because it continues to have registration above 5% of the state total.
On September 18, Rocky De La Fuente asked U.S. District Court Judge John E. Jones to reconsider his August 21, 2017 ruling that upheld the Pennsylvania ban on out-of-state circulators in presidential primaries. De La Fuente v Cortes, m.d. 1:16cv-1696.
Judge Jones said the Pennsylvania Democratic and Republican Parties have a freedom of association right to bar circulators from outside Pennsylvania from circulating primary petitions. That part of his decision was very short and casual, and was included in his opinion that also applied the sore loser law to presidential primaries.
De La Fuente argues that because another U.S. District Court in Pennsylvania in 2015 struck down the out-of-state circulator ban for general election petitions, if the Jones opinion stands, the major parties and their candidates are being discriminated against, because they can’t use out-of-state circulators. He also argues that there is no evidence that the major parties object to letting out-of-state circulators work on primary petitions. Finally, he stresses that the particular plaintiff in this case is registered Republican; it’s just that he is a member of the Republican Party in another state. He asks the court to reopen the case and allow discovery so that he can show that the major parties don’t object. He also writes, “The person holding the clipboard with a nominating petition attached is not part of the selection process of major political party nominees.”
On September 15, Level the Playing Field filed this motion for summary judgment in Level the Playing Field v Federal Election Commission, the presidential debates case pending in U.S. District Court in Washington, D.C.
