On the night of October 27, Jerry Gordon died at the age of 88. He had been the first attorney to file a ballot access lawsuit in federal court against a state law requiring a very high number of signatures. He filed that case in January 1968 against Ohio, which then required 433,100 valid signatures for a new party to get on the ballot. He filed it in the northern district of Ohio.

The 3-judge court sat on the case, which had been filed for the Socialist Labor Party, for six months. Finally it issued an opinion saying the case should have been filed in the southern district. This was wrong, because one of the plaintiffs, Peter Kapitz, the U.S. Senate nominee for the Socialist Labor Party, lived in Cleveland, which is in the northern district.

Gordon dutifully refiled the case in the southern district. The 3-judge panel in that district combined his case with the case filed for George Wallace and the American Independent Party. Then they ruled that although the Ohio law might be unconstitutional, they would not put either party on the ballot. Both parties then filed with the U.S. Supreme Court. The American Independent Party asked Justice Potter Stewart to put their party on the ballot, even before the U.S. Supreme Court had heard the case. The court wasn’t sitting yet. Stewart put the American Independent Party on the ballot. Gordon asked three days later that the Socialist Labor Party be also put on, but Stewart refused on the grounds that the delay of three days was inconvenient for the ballot-printing process. The next month the Court heard the case and struck down the Ohio law.

In 1969 the Ohio legislature lowered the petition from 15% to 7%, which still required over 200,000 signatures. In 1970 Gordon filed a new case for the Socialist Labor Party, and this time the 3-judge court not only struck down the 7% petition; it put the SLP on the ballot for the 1970 and 1972 elections.

Gordon, who lived in Cleveland, accomplished a great deal more than just these two ballot access cases. He represented activists in many types of cases. Thanks to Carole Seligman for the news.

On October 28, the Sixth Circuit reversed a U.S. District Court and reimposed the Michigan ban on photography at polling places. Here is the 2-1 decision in Crookston v Johnson, 16-2490. Judge Jeffrey Sutton, a Bush Jr. appointee, wrote the opinion. It was co-signed by Judge Ralph B. Guy, a Reagan appointee. Judge R. Guy Cole, a Clinton appointee, dissented.

The majority laid great stress on the fact that the lawsuit had been filed so close to the election, and also to the fact that the case had proceeded so fast, there had been no time for a hearing at which the state could have put on evidence. The case will continue after the election is over. Thanks to Rick Hasen for this news.

There is no penalty for anyone who photographs his or her ballot, except that the ballot will be rejected and thus the person loses the chance to vote.

The Constitution, Green, and Libertarian Parties are in the Third Circuit to overturn the state’s new county distribution requirement for statewide petitions for state office. The case law is overwhelmingly strong that statewide petitions cannot have county distribution requirements, because counties are vastly unequal in population.

The state’s brief in defense of the county distribution requirement had been due on October 26, but the state has asked for, and received, an extension to file by November 30. The case is Constitution Party of Pennsylvania v Cortes, 16-3266.