U.S. Senator Richard Durbin, a Democrat representing Illinois, said recently in a news interview that Illinois’ petition requirement for independent candidates for U.S. House is too high. See this story. Durbin is not running for re-election this year; he was re-elected in 2014.
Evan McMullin was on “This Week” with George Stephanopoulos, on Sunday morning, October 23. During the 10-minute interview McMullin said the U.S. needs a new political vehicle for the conservative movement and that the U.S. therefore “may need a new political party.” McMullin says the Republican Party is unlikely to make the changes that it needs to make, at least in the next few years. He describes the movement he represents as one which is conservative and which would treat Americans of all races and religions equally. Thanks to Ken Bush for the link.
On October 21, U.S. District Court Judge Robert C. Chambers issued this 15-page opinion in Daly v Tennant, s.d., 3:16cv-8981. It explains why the judge put Darrell Castle on the West Virginia ballot on September 22, along with various other Socialist Equality and Constitution and independent nominees for various offices. Sometimes judges issue injunctions and don’t explain their basis immediately, and this case is an example of that. The October 21 order explains that West Virginia’s law, requiring independent candidates and the nominees of unqualified parties, to file a declaration of candidacy in January, appears to violate the U.S. Constitution. The order says a January deadline “prematurely cuts off such candidate’s opportunity to respond to later developements…the January deadline deprives these candidates from knowing the political climate of the major parties and what issues will come to the forefront during campaigns. It also seriously impairs their abilities to raise support, money, and recognition for their campaigns.”
These quotes have special resonance, given the August 2016 entrance into the campaign by Evan McMullin. Although McMullin was not a plaintiff in the West Virginia case, and did not get on the West Virginia ballot, he would have been a model candidate-plaintiff for lawsuits against early deadlines in many states, especially Texas, Illinois, Indiana, and North Carolina. McMullin’s failure to file any ballot access lawsuits is a missed opportunity.
On October 21, the Ohio Libertarian Party filed this brief in the Ohio State Court of Appeals. The case is Libertarian Party of Ohio v Ohio Secretary of State, 16APE-07-496. The issue is whether the 2013 bill passed by the Ohio legislature, setting out the current definition of “party” and provision for new parties to get on the ballot, violates the Ohio Constitution. The 2013 law, combined with the Republican Party’s successful challenge of the LP’s gubernatorial candidate in 2014, has kept the party off the ballot this year and given it no easy way to ever recover its party status.
The main basis for the lawsuit is the Ohio Constitution, Article V, sec. 7, which says, “All nominations for elective state, district, county and municipal offices shall be made at direct primary elections or by petition as provided by law.” The 2013 law appears to violate this provision because it says that newly-qualifying parties can’t have a primary, but nominate by their own devices. The legislature attempted to evade this problem in 2013 when it wrote that a new party not only needs a very difficult party petition (which will probably require over 50,000 signatures in 2018), but also each nominee of a new party needs his or her own separate candidate petition. But the Ohio Libertarian Party brief points out that this provision of the Ohio Constitution has already been interpreted by the Ohio Supreme Court (in 1963) and by the Sixth Circuit, to not refer to party nominations at all. Instead “by petition” has always in the past referred only to independent candidates.
The brief also argues that it violates Equal Protection to deprive newly-qualifying parties of a primary, because under Ohio election law, party “members” are defined by their decision to vote in a particular party’s primary. Without a primary, a newly-qualifying party won’t have any legal “members”, whereas the old parties do have very valuable membership lists.
The Ohio State Court of Appeals will decide this case after the 2016 election is over. Courts do a better job when they adjudicate cases such as this after an election, instead of before an election. Everyone, including the judges themselves, will be more relaxed and more able to do an objective job.
The Durango Herald has this explanation of Colorado’s proposition 108, which would require parties that polled 10% in the last gubernatorial election, and which therefore have primaries, to let independents vote in their primaries. However, the parties would have the option of giving up their primaries in any particular year and nominating by convention, but only if 3/4ths of their state central committees agree to do that.
Under current Colorado law, independents can decide on primary election day that they want to vote in a major party primary, but to do that they are technically joining the major party whose primary ballot they choose. Proponents of the initiative say some voters are conscientiously opposed to taking that step.
Also under current law, in rare cases, the ballot-qualified minor parties (Libertarian, Green, Constitution) have primaries for a few offices. This only happens when those parties hold a nominating convention and two candidates for a particular office both make a strong showing at the convention. It has never happened for a statewide office. Proposition 108 would not change that, and qualified minor parties could still choose not to allow independents in these occasional primaries.
