Bill Lawsrence Online, a blog about Pennsylvania politics, has this article about the question of whether Governor John Kasich will be on the Pennsylvania presidential primary ballot. That primary is April 26, so the matter must be settled very soon.
The Third Circuit will hear Constitution Party of Pennsylvania v Cortes on Wednesday, April 13, in Philadelphia. The U.S. District Court in this case had invalidated Pennsylvania’s system of putting petitioning groups at risk of paying as much as $110,000 in court costs if they file a petition which is found to be invalid. Pennsylvania then appealed that decision. It would be valuable for minor party activists to attend this court hearing. The location is the federal courthouse in Philadelphia at 6th and Market Streets. The courtroom is on the 19th floor. The hearing is at 9 a.m.
The judges will be Thomas Ambro, a Clinton appointee; Cheryl Ann Krause, an Obama appointee; and D. Brooks Smith, a Bush Jr. appointee. Judge Smith seemed sympathetic to minor parties in another ballot access case in Pennsylvania in 2006, Rogers v Cortes, 460 F 3d 455. That case upheld the number of signatures needed for minor parties to get on the statewide ballot in 2006, and the vote as 3-0. But at least Judge Smith added, in footnote 8, that it was possible that Pennsylvania’s law requiring a party to have 15% of the registration in order to be on the ballot automatically might be unconstitutional. But, as he said, in the Rogers case the parties weren’t challenging that law. The footnote is somewhat unusual because Judge Smith didn’t write the opinion; the judge who did write the opinion said in footnote 8 that Judge Smith wanted that point to be made.
Judge Merrick Garland has a mixed record on issues that affect voters who wish to support minor party and independent candidates. He is President Obama’s choice for the U.S. Supreme Court, and has been a judge on the U.S. Court of Appeals for D.C. since 1997. Generally, judges in that court don’t hear ballot access cases, because the D.C. Circuit doesn’t include any states, just D.C.
In 1997, Judge Garland wrote the opinion in LaRouche v Fowler. That decision upheld the rights of political parties against the federal Voting Rights Act. The year before, the U.S. Supreme Court had ruled in Morse v Republican Party of Virginia, 517 US 186, that the Voting Rights Act applies not only to state and local governments, but to the actions of political parties. Notwithstanding that, Judge Garland wrote in LaRouche v Fowler that the Voting Rights Act cannot be used to control the actions of the national convention of a political party. In 1996, Lyndon LaRouche had entered Democratic presidential primaries and had won enough votes to be entitled to two delegates to the Demoratic National Comvention, from southern states that were covered by the pre-clearance parts of the Voting Rights Act. The Democratic National Committee then issued a rule, saying Lyndon LaRouche is not a bona fide Democrat and delegates pledged to him could not be seated. LaRouche sued the Democratic National Committee, charging that the party had not obtained permission from the U.S. Justice Department to make this change. But Garland wrote that, unlike the Morse case which only involved a Republican Party rule for nominating a U.S. Senator, the Act cannot apply to national party conventions.
In 2005 Garland wrote the opinion in Initiative & Referendum Institute v U.S. Postal Service that struck down a postal regulation barring petitioning on post office sidewalks that are parallel to a street. He remanded the case involving interior sidewalks back to the U.S. District Court. Many years later, the part of the case involving interior postal sidewalks upheld the post office, but that part of the case had no connection with Judge Garland.
Judge Garland’s lowest quality work came in Libertarian Party v D.C. Board of Elections. In 2008, Libertarian presidential nominee Bob Barr failed to get on the ballot in the District of Columbia, but he filed for declared write-in status. He was the only write-in declared presidential candidate in D.C. that year. The Board refused to count Barr’s write-ins, even though in 1974 the D.C. city appeals court (not the federal court) had ruled that presidential ballots must include write-in space and those write-ins must be counted.
The D.C. Court of Appeals, including Judge Merrick, ruled that D.C. need not count Barr’s write-ins, because D.C. had released a count of the total number of write-ins cast for President, and that was good enough. Therefore, all reference books reporting election returns for the 2008 presidential election listed Barr as having received zero votes in D.C., despite evidence that some voters had written in Barr. The D.C. Court of Appeals opinion erroneously says that the Libertarian Party was demanding that all write-ins for President be canvassed. The briefs were clear that the Libertarian Party was only asking that the write-ins for declared write-in candidates need be counted. To this day, D.C. is the only jurisdiction that allows write-in presidential candidates to file a declaration of write-in candidacy, including candidates for presidential elector, and yet still won’t count the write-ins for such declared write-in candidates.
Although 19 states haven’t yet held any Republican presidential primaries or caucuses this year, all southern states have now voted.
Here is a link to the Missouri Libertarian presidential primary results. Uncommitted is winning, followed by Austin Petersen, who lives in Missouri. The state required the list of candidates so early that neither Gary Johnson nor John McAfee had declared in time to get on that ballot.
In 2012, the only choices on the Missouri Libertarian presidential primary ballot were James Ogle and uncommitted. Ogle won.
