The electoral college is meeting on Monday, December 19, at state capitols all around the nation. Each state sets its own time for that.
One Democratic presidential elector in Maine, David Bright, voted for Bernie Sanders instead of Hillary Clinton. Thanks to several people for that news.
The Colorado electors meet at noon, Colorado time.
On December 13, U.S. District Court Judge Stephen Friot, a Bush Jr. appointee, upheld Oklahoma’s petition for independent presidential candidates, and the presidential nominees of unqualified parties. De La Fuente v Ziriax, 16cv-914. The law requires 3% of the past presidential vote. On a percentage basis, it is the most severe law in the nation for independent presidential candidates.
The decision is eight pages. Oklahoma does not require any petition for independent candidates, except presidential independents, and plaintiffs pressed this point. But the decision says that the state has an interest in making ballot access more difficult for presidential independents than for independents for other office.
The decision says, “The presidential office is the most important office in the nation, and it is the only office which is elected by state electors, facts which justify more rigorous ballot access rules for election to this office as compared to the office of Senator. See Nixon v Fitgerald (president occupies a unique position in the constitutional scheme).”
The decision does not mention Anderson v Celebrezze, which said that states must go easier on presidential ballot access than ballot access for other office. Nor does it mention any of the decision that say states can’t make independent petitions more difficult than petitions for new parties.
The plaintiffs were Rocky De La Fuente and Jill Stein.
On December 18, the Virginia Libertarian Party, and its candidate for U.S. Senate in 2014, Rob Sarvis, asked the U.S. Supreme Court to hear Sarvis v Alcorn. A case number hasn’t been assigned yet. The issue is the Virginia law that says the parties that polled at least 10% in one of the last two elections are automatically at the top of the ballot.
Virginia law, ironically, allows for a random method to determine whether the Republican Party or the Democratic Party are listed first, within that top tier. So the law itself recognizes the importance of being listed first on the ballot, and uses an objective standard to decide which major party gets that status.
The U.S. District Court, and the Fourth Circuit, in their opinions in this case, acknowledged that it is advantageous to be listed first on the ballot. But they said Virginia has an interest in bolstering the two largest parties against their competitors.
The Coalition for Free & Open Elections (COFOE) helped pay for the cert petition printing. Thank all of you who have contributed to COFOE recently. Generally the donors are individuals who subscribe to the print edition of Ballot Access News. Individual dues for COFOE membership are $30, and members receive a free copy of Ballot Access News, print edition.
A copy of the cert petition will be posted here soon.
On December 14, U.S. District Court Judge James Robart, a Bush Jr. appointee, refused to enjoin Washington state’s penalty of up to $1,000 for presidential electors who vote in the electoral college for someone other than their party’s nominee. Chiafalo v Inslee, 2:16cv-1886. The seven-page decision says that unlike Colorado, Washington state does not threaten that such electors will be removed from their position if they vote unexpectedly. The decision says on page six, “Washington has no law precluding Plaintiffs from voting as they choose — and having those votes counted.”
As to the $1,000 fine, the decision says that the fine could perhaps be less, because the law just says the penalty shall be no greater than $1,000. The decision also suggests that the state might not levy any fine.
The two plaintiff presidential electors filed an appeal with the Ninth Circuit, 16-36034, but the Ninth Circuit refused to disturb the U.S. District Court decision. The Ninth Circuit simply said “We do not find that appellants have shown a likelihood of success or serious questions going to the merits, or that appellants have shown a likelihood of irreparable harm.” The Ninth Circuit judges were Edward Leavy, a Reagan appointee; and two Clinton appointees, Sidney Thomas and Barry Silverman.
On December 16, the Tenth Circuit issued a 15-page opinion in Baca v Hickenlooper, 16-1482. The appeal had been filed by two of the electors who had said they planned to vote for someone other than Hillary Clinton. The U.S. District Court had denied them any relief.
Although the Tenth Circuit also denied relief, it made several statements that suggest that if the electors do indeed “disobey”, they cannot be removed as presidential electors. Page 12 says, “Whether the statute also affords that the State with authority to remove an elector after voting has begun is not a question that has been posed by plaintiffs to either the district court or this court.” Then footnote four, appended to this sentence, says, “And we deem such an attempt by the State unlikely in light of the text of the Twelfth Amendment.”
Also page thirteen says, “While we question whether that subsection provides the Secretary of State any such authority after voting has commenced, that precise question is not before us.”
Finally, footnote three says, “This is not to say that there is no language in Article II or the Twelfth Amendment that might ultimately support plaintiffs’ position”. It then quotes a 1952 U.S. Supreme Court opinion which says that elector freedom to vote for anyone who meets the constitutional qualifications is “implicit in the text” of the Constitution.
The decision is unsigned. The three judges who issued the order are Mary Beck Briscoe, a Clinton appointee from Kansas; Carolyn McHugh, an Obama appointee from Utah; and Nancy Moritz, an Obama appointee from Kansas.
