The Federal Election Commission will meet on March 23 and decide whether to extend the current exemption from campaign reporting that the Socialist Workers Party has been entitled to since 1974. On March 9, FEC staff prepared a possible draft for a ruling that would extend the exemption until 2020. This draft is far more sophisticated than earlier FEC drafts that denied an extension. To read the new draft, click on the link. Then choose “Pending Advisory Opinion Request.” Then choose “Draft AO Agenda Document No. 17-01-C.”

The new draft says, “The Socialist Workers Party candidate for President in 2016 achieved general election ballot access in seven states and received approximately 12,000 votes. The SWP has not placed any candidates on the ballot for the U.S. Senate or House of Representatives since 2012…the SWP and committees supporting its candidates receive very small amounts of contributions and very low vote totals in partisan elections relative to other political parties. This suggests that the activities of the SWP, its candidates, and committees supporting its candidates have little, if any, impact on federal elections.”

The new draft also incorporates instances of government and private harassment of SWP candidates and supporters that occurred in 2016.

Although there is no guarantee that the FEC commissioners will choose this draft, as opposed to the earlier drafts denying the extension of the exemption, the obvious higher quality of this draft makes it seem likely that it will be accepted by the Commissioners.

Rocky De La Fuente, an independent presidential candidate last year, currently is suing California over its requirement that independent presidential candidates in 2016 needed 178,039 signatures. On March 10, De La Fuente argued in the Ninth Circuit that the U.S. District Court that denied his request to be put on the ballot should be instructed not to depend on the Hawaii precedent Nader v Cronin.

The U.S. District Court last year had denied De La Fuente’s request to be put on the ballot, on the basis that his lawsuit was unlikely to win. The U.S. District Court in 2016 noted that the Ninth Circuit in 2010 had upheld Hawaii’s 2004 independent presidential petition requirement of 3,711 signatures. The U.S. District Court in 2016 said that because Hawaii required 1% of the last presidential vote, and California requires 1% of the number of registered voters, the cases are virtually the same, and therefore the California De La Fuente case is very unlikely to win.

The U.S. District Court in California still hasn’t ruled on whether the California law is constitutional, and will do so in the future. But in the meantime, De La Fuente wanted the Ninth Circuit to tell the U.S. District Court not to rely so heavily on the Hawaii case. But the Ninth Circuit, which heard this case on March 10, seemed inclined to stay out of the case at this point, and not consider that issue until after the U.S. District Court rules on declaratory relief. The three judges who heard the case on March 10 were Marsha Berzon, Morgan Christen, and Richard Paez. The hearing only lasted 10 minutes.

The North Carolina bill that converts elections for local judicial elections from non-partisan to partisan elections, also changes the deadline for all independent candidates (for all office, even President) from June to April. The two subjects of whether judicial elections should be partisan, and what the deadline should be for independent candidates for all office, are not really related to each other. But it is common for legislatures to alter two different subjects in a single bill.

It is not known what caused the legislature to change the petition deadline for independent candidates. However, the deadline change would be held unconstitutional, because in 1980 a U.S. District Court struck down North Carolina’s independent petition deadline for independent candidates. By coincidence, the deadline struck down in 1980 was April 25, and under the current HB 100, the 2018 deadline for independent candidates would also be April 25. The 1980 decision was Greaves v North Carolina State Board of Elections, 508 F Supp 78 (e.d.).

April petition deadlines for independent candidates for president are clearly unconstitutional under Anderson v Celebrezze. Other states in which April petition deadlines (for independent candidates or new parties) have been declared unconstitutional are Alabama, Arkansas, Maine, Missouri, Nevada, New Jersey, New Mexico, Pennsylvania, Tennessee, and Utah.

The North Carolina bill, HB 100, can be read here. It has already passed the legislature. The Governor may veto it, but the legislature has enough Republicans in both houses to override his veto. The date of the 2018 primary is May 8.