On December 12, U.S. District Court Judge Karen Schreier ruled that the Libertarian and Constitution Parties of South Dakota will be able to amend their complaint in their ballot access case that was filed in 2015. This will enable the case to proceed. The issue now is whether a March petition deadline is constitutional for a newly-qualifying party that wants to have nominees for Congress, state legislature, and Governor. Libertarian Party of South Dakota v Krebs, 4:15cv-4111.
New Hampshire is one of the states that allows write-in votes for president in the general election, but doesn’t have a procedure for a presidential write-in candidate to file a declaration of write-in candidacy. In recent past presidential elections, the Secretary of State has rather arbitrarily decided which candidates to tally. For instance, in November 2012, he tallied write-ins for Jill Stein and Ron Paul (who was not a declared candidate in the general election), but no one else.
This year, he tallied write-ins for any presidential candidate who requested a tally. However, many bona fide presidential candidates who were not on the New Hampshire ballot didn’t realize that if they asked for a tally, they could get one. That is why the Secretary of State tallied write-ins for Evan McMullin, but not candidates such as Darrell Castle. McMullin received 1,064 write-ins in New Hampshire.
In 2016 the Secretary of State also tallied write-ins for certain people who had run in the presidential primaries this year, but were not candidates in November and did not request a write-in tally: Bernie Sanders 4,493; John Kasich 1,365; Jeb Bush 230; Marco Rubio 136; Ted Cruz 129; Rand Paul 98; Ben Carson 83; Vermin Supreme 58; and Chris Christie 23. And he tallied write-ins for these prominent persons who did not run in any presidential primaries this year: Mike Pence 937; Mitt Romney 540; Paul Ryan 280; John McCain 127; and Joe Biden 55.
The failure to count write-ins for Darrell Castle seems unfair, because Castle filed a declaration of candidacy to get on the ballot, but didn’t appear because his petition didn’t have enough valid names. He was the only person who filed a declaration of candidacy to get on the ballot but whose petition was rejected.
Nine Democratic presidential electors, and one Republican presidential elector, have signed a letter to the Director of National Intelligence, asking for a briefing before the electoral college meets on December 19. See this story, which has a link to the letter itself. The letter also has a link by which other electors may add their names to the letter. The electors say they need to review evidence that Russia manipulated the U.S. election campaign. Thanks to Political Wire for the link, which is at Politico.
On December 12, a U.S. District Court in Pennsylvania refused to order the state to hold a presidential recount. The federal case had been filed by Jill Stein, after the state courts ruled that state law does not permit her to request a recount unless the voters who request the recount furnish a bond of $1,000,000.
The Eighth Circuit will hear Moore v Martin, 15-3558, on Wednesday, December 14, in St. Louis. The hearing is in the Federal Courthouse, 28th floor, at 9 a.m. The issue is the non-presidential independent petition deadline that was in effect in 2014 (when the case was filed) and again in 2018. That deadline is in the first week of March. In August 2015 the U.S. District Court had upheld that deadline.
On December 6, 2016, the panel of the Eighth Circuit judges who are hearing the appeal asked attorneys for both sides to please provide a copy of an unreported court decision from 1976, Lendall v Jernigan. That decision struck down the Arkansas non-presidential independent deadline of April. That 1976 decision was before a 3-judge court. Decisions of three-judge courts are entitled to get a response from the U.S. Supreme Court. In the 1976 Lendall case, after Arkansas lost in the 3-judge court, it appealed to the the U.S. Supreme Court, and in 1977 the U.S. Supreme Court summarily affirmed the decision striking down the April deadline.
Summary affirmances are binding, if the issue is precisely the same. After Arkansas lost the 1976 case, it had changed the deadline to May. But then in 1987 the legislature had forgotten why it had moved the deadline to May, and moved the deadline to January. In 1988 a new lawsuit was filed against the January deadline, and the U.S. District Court struck down the January deadline, pointing out that if the U.S. Supreme Court had already summarily struck down an April deadline for Arkansas, obviously a January deadline is too early.
In response to losing the 1988 case, the state moved the deadline back to May, but in 2013 it again forgot why it had done that, and moved the deadline to March. It is a very hopeful sign that the Eighth Circuit panel wants to see the original 1976 decision. On December 12 the attorney for the plaintiff-candidate furnished a copy of the decision to the panel.
