Ever since 1982, Maryland has required independent candidates to file their petitions in early August of election years. But in 2015, an amendment was made to Maryland election law that, in the eyes of some, forced independent candidates to file a declaration of candidacy in February of the election year. February is when candidates seeking to run in a party nominating process must file a declaration of candidacy.

On February 1, 2017, the Maryland State Court of Appeals, the highest state court, ruled that the law does not require independent candidates to file anything until August of the election year. Lamone v Schlakman, 2016-50. The state board of elections had taken this position and did not believe an early declaration is needed. But when the Board allowed an independent candidate, Dan Sparaco, to qualify for Baltimore city council in 2016, even though Sparaco had not filed a declaration of candidacy in February 2016, one of the other candidates for the same seat had filed a challenge. The lower state court had removed Sparaco from the ballot, but the State Court of Appeals had put him back on, and had said it would explain its reasoning later. The February 1, 2017 decision now settles the issue.

If the state law did require independent candidates to file a declaration of candidacy in February, such a law would almost certainly have been held unconstitutional. Maryland is in the Fourth Circuit, and the Fourth Circuit in 1990 struck down a similar South Carolina law.

Georgia State Senator Josh McKoon (R-Columbus) has introduced SB 112. It would eliminate mandatory ballot access petitions for independent candidates and the nominees of unqualified parties. If this bill passed, the Georgia general election ballot still wouldn’t be crowded, because independent and minor party candidates pay high filing fees (Georgia has the second highest filing fees of any state, 3% of the annual salary).

The only petitions would be for persons who allege they cannot afford to pay the filing fee.

Florida gets along with a system like this, and has ever since 1999. Thanks to Amanda Swafford for this news.

On February 1, U.S. District Court Judge David O. Carter, a Clinton appointee, ruled that the California Secretary of State did not violate the First Amendment when he censored Paul Merritt’s candidate statement in the Voters Guide. The Voters Guide is a publication mailed to every registered voter. Candidates for partisan office may pay to have a statement about themselves. The law does not restrict the content, except to say the statement must not discuss any opponents of the candidate.

In the 2016 U.S. Senate primary, Paul Merritt, who was on the ballot, wrote a statement that started with his name and “registered independent voter”. But the Secretary of State refused to print “registered independent voter” in the statement, and changed it to “no party preference” without even telling Merritt. Generally when the state objects to something in the Guide, there are procedures to inform the candidate and work with the candidate. But Merritt didn’t even learn his statement had been changed until he received his copy of the Guide in the postal mail.

Judge Carter wrote that because independent candidates are not permitted to be labelled “independent” on the ballot, therefore it follows that they cannot call themselves “independent” in the candidate statement either. The state had tried to defend its decision by differentiating between the opening line of the statement, and the body of the statement. But Judge Carter’s six-page opinion takes no note of that, and implies the state could have censored the body of the statement as well as the heading.

Judge Carter overlooked a Ninth Circuit decision from 2002, Rubin v City of Santa Monica. That was a dispute over whether a candidate could use the occupation “peace activist” as his occupation (California prints occupations of candidates on the ballot). Although Rubin lost the case, the decision said that if he didn’t have the ballot label he wanted, he at least had the freedom to express that label in his candidate ballot statement in the Voters Guide.

Judge Carter did recognize there might be a due process violation by the Secretary of State’s refusal to even tell Merritt what he had done before doing it, so he granted permission to Merritt to amend his complaint to keep that part of his lawsuit alive. The decision is Merritt v Padilla, c.d., 8:16cv-606.