On December 29, the Tenth Circuit denied a request for rehearing that had been filed by Kansas and Arizona, in Kobach v U.S. Election Assistance Commission. Those two states had lost earlier this month, and had asked the court for rehearing, but it was denied. Thanks to Rick Hasen for the news.
According to this story, Michael Grimm, who was just re-elected to Congress from New York city last month, will resign this week. He is the only Republican member of the U.S. House from New York city. A special election will be needed.
On December 17, the New Jersey voters who believe that New Jersey’s primaries violate the U.S. Constitution filed this reply brief. The case is Balsam v Secretary of State of New Jersey, 14-3882, now pending in the Third Circuit. New Jersey has registration by party, and does not let voters voter in a partisan primary unless the voter is a member of the party. However, independent voters are free on primary day to join a party, and then free to disaffiliate immediately after voting in that party’s primary. Some of the plaintiffs are independent voters. Other plaintiffs are registered Republicans and registered Democrats who say that they dislike being registered into their party, and they only register so they can vote in a party primary.
The last page of the brief asserts, “Primary Results Effectively Control the Choice in General Election”. The truth of this sentence is not self-evident, but its truth could perhaps be established with the introduction of evidence. However, this particular case lacks very much evidence. The U.S. District Court dismissed the case before giving the plaintiffs a chance to submit much evidence. It would be interesting to see a trial in this case. That trial could bring out all the methods by which New Jersey makes it virtually impossible for anyone other than a Democrat or a Republican to ever win a partisan election. New Jersey does this by giving the Democratic and Republican Parties their own party column on the ballot, and by forcing every other candidate to run in a column on the side of the ballot labeled “Nomination by Petition.” In 2003, an incumbent New Jersey Assemblyman, Matt Ahearn, changed from the Democratic Party to the Green Party. He then ran for re-election in November 2003 as the Green Party nominee. But the Bergen County ballot put him in a remote corner of the ballot under the heading “Nomination by Petition”, and as a result he only got 10.8% of the vote. He had been a well-regarded member of the legislature and if New Jersey had fair ballot formats, he would have had a chance of being re-elected, and he certainly would have got a far larger share of the vote.
The brief’s assertion that the U.S. Supreme Court upheld Washington state’s top-two system is not the whole truth. The 2008 decision Washington State Republican Party v Washington State Grange said the decision was not deciding the ballot access issue (see footnote eleven). And the decision didn’t even determine conclusively that the system doesn’t violate Freedom of Association; it just said the system doesn’t violate Freedom of Association on its face.
Political Science Professors Walter Dean Burnham and Thomas Ferguson have published “Americans are sick to Death of Both Parties; Why Our Politics is in Worse Shape than we Thought” in Alternet. The article was posted December 18, 2014.
Burnham was an expert witness on behalf of the New Party, twenty years ago, when it challenged the ban on fusion in Minnesota. When that case, McKenna v Twin Cities Area New Party, reached the U.S. Supreme Court, Chief Justice William Rehnquist wrote the decision. Rehnquist upheld the ban on fusion, and in his decision, Rehnquist quoted Burnham out-of-context, to make it seem as though this eminent political scientist supported the ban on fusion, when the truth was the exact opposite. The decision in the McKenna case is the only U.S. Supreme Court decision in history to uphold a ballot access law on the basis that the nation has an interest in a “two-party system.” Thanks to Independent Political Report for the link to the article.
The Maine Libertarian Party has become the first group to comply with the 2013 law that says if a group wants to qualify as a political party, it must notify the state in December of an even-numbered year. Such a group then has a year to obtain 5,000 registered members.
It is not clear if individuals who registered “Libertarian” long ago, when the party was ballot-qualified in the past, will count. The Libertarian Party was a qualified party in Maine during 1992, and chances are there are some voters who registered “Libertarian” back then, and who have never re-registered. Chances are, Maine election officials won’t go to the bother of finding such individuals, because they have been coded as independent voters in the computerized records. However, certain other states do “revive” such registrations when parties go off the ballot and then return, including Alaska, Arizona, California, Delaware, Massachusetts, Pennsylvania, South Dakota, and West Virginia.
There were 1,048 registered Libertarians in Maine at the end of 1992.
If any other group also wishes to file this month, the deadline is December 30, not December 31; and the application requires the signatures of at least ten voters who are not registered members of any of the three qualified parties (Democratic, Republican, and Green). It seems likely that if the deadline for filing the notice of intent to qualify were challenged in court, it would be overturned; there seems to be no state interest in specifiying only one particular month for filing such a notice.
