On September 9, three judges of the Seventh Circuit granted a stay of the U.S. District Court order in Gill v Scholz. This means that Dr. David Gill, independent candidate for U.S. House, 13th district of Illinois, is now off the ballot. The U.S. District Court had put him on, on the basis that a petition of 5% of the last vote, combined with only 90 days to collect the signatures, is probably unconstitutional.

The three judges of the Seventh Circuit who took this action are Richard Posner, a Reagan appointee; David F. Hamilton, an Obama appointee; and William J. Bauer, a Ford appointee. Judge Bauer is not a full-time judge and will turn age 90 next week.

Judge Bauer had a good record on ballot access in the 1970’s, but not in the last decade. Judge Posner has consistently been hostile to ballot access plaintiffs. In 1985 he upheld Indiana’s ballot access law, which is so strict, Indiana is one of only four states in which Ralph Nader was never able to get on the ballot. In 2004 he refused injunctive relief for Ralph Nader against the June petition deadline in Illinois, even though that same deadline had been enjoined in 2000. And in 2008 he upheld the Illinois law for independent candidates for U.S. House in the Stevo case. The issue in that case was that Illinois requires exactly 5,000 signatures for independent candidates for U.S. House, so the plaintiff, who needed 10,285 because he was not running in a year that ended in “2”, argued that there was no state interest in ever requiring more than 5,000 signatures for that office.

Judge Hamilton is the newest judge on the court. He had only had one ballot access case; he voted to uphold the requirement that candidates for Mayor of Chicago submit 12,500 signatures. However, that requirement is met frequently; there has never been a Mayoral election in Chicago since that law was in effect when there weren’t at least five candidates on the ballot.

On September 8, Rocky De La Fuente filed a lawsuit against the Texas ballot access requirements for independent presidential candidates, and against the state’s sore loser law as applied to presidential candidates. Kennedy v Secretary of State of Texas, w.d., 1:16cv-1047.

Texas is the only state with an independent presidential petition deadline earlier than June 9. The full range of deadlines for this type of petition, around the nation, is June 9 through September 9, except that Texas’ deadline is May 9.

Texas is also one of only two states in which the deadline for an independent congressional candidate is later than the deadline for an independent presidential candidate. The Texas petition deadline for independent congressional candidates, and state and county office, is June 23. The other such state is Nebraska, where the independent presidential deadline is August 1 but the independent deadline for congress is September 1 (also this year the Vermont independent presidential deadline is 3 days earlier than the independent congressional deadline; both are in August).

Texas is also one of only three states that requires more signatures for an independent presidential candidate than for an independent candidate for other statewide office. The Texas presidential petition is 79,939 signatures but the petition for other statewide office is 47,086. The U.S. Supreme Court said in Anderson v Celebrezze that states must go easier on ballot access for president than for other office. The other states with this characteristic are Florida and Oklahoma. De La Fuente and Jill Stein are suing Oklahoma.