As of 10:40 pm, the Nevada Assembly still has not taken up SB 421, the bill to switch from presidential caucuses to primaries. The legislature is not permitted to meet past midnight.
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On June 1, Vermont Governor Peter Shumlin signed SB 29, which lets individuals register to vote on election day. The bill’s chief sponsor is Progressive Party State Senator Anthony Pollina. Many town clerks opposed the bill, because it will require more personnel at the polls on election days to handle the extra work. Thanks to the Brennan Center for this news.
Washington state used a blanket primary from 1934 to 2002, and California used a blanket primary in 1998 and 2000. Under a blanket primary, all candidates appear on a single primary ballot. Then, the top vote-getter from each party appears on the November ballot. Independent candidates can be handled in a variety of ways. In California in 1998 and 2000, independent candidates didn’t run in the primary and instead petitioned to get on the November ballot. But in California special elections 1967-2010, independent candidates did run in the primary and also were automatically put on the runoff ballot if there was a runoff. In Washington’s blanket primaries, independents didn’t run in the primary 1934-1976 but they did 1978-2002, and went on the November ballot if they got 1% of the primary vote.
Both states stopped using blanket primaries because in 2000, the U.S. Supreme Court ruled they are unconstitutional, if a party objects to them. That case was California Democratic Party v Jones. States can continue to use blanket primaries if parties don’t object to them. Alaska still uses a blanket primary, in which all of Alaska’s parties except the Republican Party participate. Also California continued to use blanket primaries for special elections for ten years after the U.S. Supreme Court decision, and no one objected.
Recent federal court activity from Utah and Montana indicate that Washington and California could return to a blanket primary if the law providing for a blanket primary also said that if a party doesn’t like the blanket primary, then it is free to opt out and nominate by convention. In Utah, the legislature had passed a law requiring parties to permit independents to vote in their primaries and also to let people petition onto the primary ballot whether they had any support at a party meeting. The new law says parties that don’t permit both of these things can still nominate candidates but they won’t be given a primary. The Republican Party challenged the new law in Utah Republican Party v Herbert, 2:14cv-876, but U.S. District Court Judge David Nuffer refused to enjoin the new law and said it is probably constitutional.
In Montana, where the law originally said parties were required to elect party officers at an open primary, the Republican Party challenged the open primary. But then the legislature in 2015 passed a law saying if parties don’t want to elect party officers in the primary, they are free to elect them in party meetings instead. It seemed so obvious that the 2015 cured the constitutional problem, the Republican Party dropped its appeal in the Ninth Circuit, in its 2014 case Ravalli County Republican Central Committee v McCulloch, although parts of the case not involving party officers are still pending in U.S. District Court.
Also, Republican Party lawsuits earlier in Virginia and South Carolina against being forced to use an open primary to nominate candidates for public office failed, because in both states any party is free to nominate by convention instead of primary.
The logic of the Utah, Montana, Virginia and South Carolina cases suggests that if California and Washington required parties to use a blanket primary or to nominate by convention, such a law would be constitutional.
U.S. District Court Michael J. Reagan, a Clinton appointee, will hold a trial in Tripp v Smart, s.d., 3:14cv-890, on July 17, Friday, at 10 a.m. This is the Green Party ballot access lawsuit that challenges the Illinois law on how nominees of unqualified parties get on the ballot for legislature. The two candidate-plaintiffs, Tabitha Tripp and Gary Shepherd, tried very hard to complete the 5% (of the last vote cast) petition for the November 2014 election, in state representative districts 115 and 118.
They argue that in practice, these petition requirements are virtually impossible to overcome. The Green Party is strong in Carbondale, which is split between these two districts. Both districts are largely rural and very large physically. The party argues that the absence of high-density population centers, the confusion caused by the two districts splitting Carbondale, the need to notarize each petition sheet, and the short 90-day period for collecting signatures, taken together, are unconstitutional. Briefs on both sides were filed on May 26. Of course, the Green Party’s briefs mention that a U.S. District Court earlier this year found Pennsylvania’s notarization requirement unconstitutional.
This is one of three constitutional ballot access cases pending in Illinois. The other Green Illinois case, in the northern district, also challenges the notarization requirement, but it is not as far along. The Libertarian case that challenges the requirement that newly-qualifying parties run a full slate of candidates was filed in 2012 and still hasn’t had a decision on declaratory relief. A decision could come at any time. Thanks to Vito Mastrangelo for the news about the Tripp case.
On June 1, the U.S. Supreme Court put out four opinions, but none of them relate to election law. The next opinions will be June 8.