On December 19, the Constitution, Green and Libertarian Parties filed this reply brief in the Third Circuit. The issue is the constitutionality of a U.S. District Court order that requires their statewide petitions for state office to include a certain number of signatures from each of ten counties. The number is either 100 or 200, depending on which office.

The United States Supreme Court invalidated county distribution requirements for statewide petitions in 1969 in Moore v Ogilvie, and the Pennsylvania county distribution requirement is now the only county distribution requirement for a general election minor party or independent candidate, anywhere in the nation.

A “certificate of ascertainment” is a document filed by each jurisdiction that elects presidential electors. Under Title 3, section 6, of the U.S. Code, these documents must be signed by the Governor and filed with the National Archives. Here is California’s certificate, signed by Governor Jerry Brown.

California’s certificate is inaccurate on its face. It claims that the 55 Republican electors each received 4,483,810 popular votes. It also claims that the 55 American Independent Party electors, who are almost entirely different individuals, also received 4,483,810 votes. That means that 108 Trump electors each received 4,483,810 votes, even though California is only entitled to 55 electoral votes.

Two individuals were on both the Republican list and the American Independent Party list.

A more honest certificate of ascertainment would have said that it is impossible to know how many popular votes each of the presidential elector received, because voters who voted for Trump in California were forced to vote for 108 presidential electors, instead of 55. If Trump had received the most popular votes in California, there would be no way to know which of his 108 elector candidates had been elected. The mainstream press in California has ignored this event, even though it is believed that no state has ever before blundered in this way.

The Secretary of State of California first accepted the 55 AIP candidates, and then he also accepted the additional 53 Republican candidates. He should have told the American Independent and Republican Parties that he would not accept their lists unless the two parties agreed on a common slate of 55 Trump electors. If they had then refused, he should have printed two spaces on the ballot for Trump, so that any voter could choose whether to vote for the Republican slate or the AIP slate.