On September 9, the Seventh Circuit agreed with the U.S. District Court that Indiana cannot provide for limited nominations in partisan judicial races. The case is Common Cause Indiana v Individual Members of the Indiana Election Commission, 14-3300. Here is the 32-page opinion.

Indiana’s law only applies to Marion County, which is identical to the city of Indianapolis. The law says no party may run candidates for more than half the seats for Superior Court Judge. Some years 16 seats are up; in those years no party may run more than 8 nominees. Other years, 20 seats are up; in those years no party may run more than 10 nominees. The purpose of the law is to prevent one party from winning all the races.

The decision is on shaky grounds, because elsewhere around the nation, limited voting and limited nominations have been upheld. The decision mentions decisions upholding limited voting and/or nominations in New York, Connecticut, and the District of Columbia. The decisions from Connecticut and the District of Columbia were summarily affirmed by the U.S. Supreme Court. The Seventh Circuit declines to follow those precedents on the grounds that judicial elections are different than elections for other office. The cases from New York, Connecticut, and D.C. involved city council and school board elections. The decision is by U.S. District Court Judge Theresa Springmann, a Bush Jr. appointee sitting temporarily on the Seventh Circuit for this case. The decision is co-signed by Judge Michael S. Kanne, a Reagan appointee; and Ilana D. Rovner, a Bush Sr. appointee.

The decision says the Indianapolis limited nomination law restricts the right of voters to a choice of whom to vote for. One flaw in that argument is that, in theory, minor party and independent candidates are also permitted to run, so if there were robust independent candidates or minor party candidacies, the voters would still have a meaningful choice in the general election. But, the decision says there haven’t been any such candidates since 2000 and 2002, when there were some Libertarian nominees. Obviously when there are only Democratic and Republican nominees on the general election ballot, and each of those parties can only run for half the seats (and assuming there are no declared write-in candidates), the voters have no choice whatsoever; the outcome is predetermined. Thanks to How Appealing for the news of this decision.

On September 9, U.S. District Court Judge M. Hannah Lauck denied injunctive relief to the Powhatan County Republican Committee, in its lawsuit to force the state to print party labels on the general election ballot for county office. The basis for the denial of relief is that the party filed its lawsuit too late. The constitutionality of the Virginia law, barring party labels for county office, will be decided later.

The case is Robert G. Marcellus v Virginia State Board of Elections, e.d., 3:15cv-481. Virginia law provides that parties nominate candidates for county office, but party labels can’t appear on the general election ballot for county office. Party labels do appear on the ballot for federal and state office. The judge said the party should have filed the lawsuit much earlier, if it wanted injunctive relief for the November 3, 2015 election. The lawsuit was filed on August 17. The party had nominated candidates for county office in May 2015, and the judge said the case should have been filed then. Thanks to Rob Richie for news about this lawsuit.

On November 9, the Ohio Supreme Court unanimously put Tom Bernabei on the November 3, 2015 ballot as an independent candidate for Mayor of Canton. He submitted a valid petition, but his ballot status was still challenged on the grounds that he was too closely associated with the Democratic Party to be an independent. Here is the opinion in State ex rel Morris v Stark County Board of Elections, 2015-3659. He had been elected to county office in 2012 as a Democrat and had not resigned from that office.

Also, the Court unanimously put Francis Cicchinelli on the ballot as an independent candidate for Mayor of Massillon. He also submitted a valid petition, but was challenged because he had also recently run for other office as a Democrat. Here is the decision in State ex el Richards v Stark County Board of Elections, 2015-3658. At the administrative hearing, Cicchinelli was asked by the challengers when he first considered himself an independent. He replied “primary day, in May of this year.” The Supreme Court ruled that he had thought, when he answered the question, that this was a legal question, and because he had chosen a non-partisan primary ballot, that was his way of saying that legally he was now an independent. For purposes of his ability to qualify as an independent, it was important that his “state of mind” that he was an independent was earlier than that day, and the Court felt that his answer had not disqualified him.

One of the oddest parts of the Cicchinelli case is that his wife was also put on the stand and she was asked when he first considered himself an independent. Ohio state courts have many cases trying to figure out who qualifies as an independent. Section 3501.01 says an “Independent candidate” means “any candidate who does not consider himself affiliated with a political party.” This is an absurd law that should be repealed. Ohio voter registration forms do not ask applicants about their partisan affiliation or lack of it. Given that there is no objective standard in Ohio for who is an independent, the law should be repealed.