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

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

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

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.

California Bill to Require Presidential Primary Candidates to Reveal Tax Returns Advances

On August 23, the California Assembly Appropriations Committee passed SB 149.  This is the bill that forces candidates running in a presidential primary to reveal their income tax returns.  The bill had already passed the Senate and had already passed the Assembly Elections Committee, so now it goes to the Assembly floor.  The vote was 10-5.

Although bills to require presidential candidates to reveal their income tax returns had been introduced in several states this year, the California bill seems to be the only such bill that is likely to pass.  It would have no effect on independent presidential candidates.