On May 5, Oklahoma Governor Mary Fallin signed SB 896. This bill lowers the number of votes for a party to remain on the ballot, from 10% for the office at the top of the ballot (President or Governor) to 2.5%. Although this is still more stringent than the median state, it is the lowest percentage of the vote that Oklahoma has required since 1913. The vote test between 1913 and 1974 was 5% at either of the last two elections; then it went to 10% at the last election.

This bill probably would not have been introduced, if the Libertarian Party had not got on the ballot this year. No other party qualified this year. It is likely that the legislature would not have been interested in lowering the vote test, if there had been no clear beneficiary for such a change. Thanks to E. Zachery Knight for this news.

On May 4, U.S. District Court Judge William B. Shubb, a Bush Sr. appointee, upheld the action of the California Secretary of State relative to the Independent Party. The Secretary of State has refused to tally the number of voters registered in the Independent Party, on the grounds that no matter what the tally might show, such a party would be illegal. The reason is that voters would be confused if a party named the Independent Party were allowed to exist.

The decision does not mention the evidence presented in the case that eleven other states have had Independent Parties on the ballot in recent years, except to say that this evidence will be excluded.

The Secretary of State presented no evidence that confusion would exist if the Independent Party were allowed to exist. The decision seems to acknowledge that there is no clear evidence that confusion would result, because it says voters “might” be confused. Judge Shubb said “the court cannot conceive” of any facts that would cause him to change his mind, so he dismissed the case. Thanks to Markham Robinson for the link.

On May 4, the Ninth Circuit heard Democratic Party of Hawaii v Nago, 13-17545. The issue is whether the Democratic Party has a constitutional right to avoid having its nominees chosen in an open primary. Hawaii voter registration forms do not ask the applicant to choose a party, and on primary day, any voter can request any party’s primary ballot.

The three judges were A. Wallace Tashima and Richard Tallman (Clinton appointees) and Andrew Hurwitz (an Obama appointee). The U.S. District Court had ruled against the Democratic Party, because the party had not presented evidence that persons hostile to the Democratic Party are actually voting in Hawaii Democratic primaries.

The party argued that open primaries are unconstitutional, as applied to parties that don’t desire them. The party argued it would be almost impossible to produce evidence, because Hawaii’s open primary has been in existence since 1998, and the voter’s choice of which party ballot to use is secret. The party argued that if one reads California Democratic Party v Jones, the 2000 U.S. Supreme Court decision that invalidated California’s blanket primary, it should be clear that evidence is not needed.

There are two Ninth Circuit prior decisions on whether evidence is needed when the constitutionality of open or blanket primaries is challenged, and they seem to contradict each other. In September 2003 the Ninth Circuit invalidated Washington state’s blanket primary, in Democratic Party of Washington State v Reed. In that case, the Ninth Circuit said no evidence was needed. But in December 2003, another panel of the Ninth Circuit ruled that the Libertarian Party’s lawsuit against the Arizona open primary did need evidence, and sent the case back to the U.S. District Court (the party eventually won the case in 2007). That case was Arizona Libertarian Party v Bayless.

Judge Tashima speculated that if the Democratic Party won the case, the effect would be to shift the Democratic Party of Hawaii to the left.