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.

A South Dakota state constitutional amendment is being circulated to make all offices in South Dakota non-partisan, except for President. All candidates would run in June, and then the top two vote-getters would run in November. No party labels would be on the ballot, except for President. Here is the text of the amendment.

The wording seems to mandate write-in space on all South Dakota ballots. South Dakota is one of four states that has never permitted write-in votes (the others are Oklahoma, Hawaii, and Nevada). The initiative, which would be in the State Constitution if it passed, says, “Each qualified voter is guaranteed the unrestricted right to vote for the qualified candidate of the voter’s choice in all elections.” Presumably “qualified” means a candidate who meets the constitutional qualifications to hold the office. In November 2014, South Dakota voters were not permitted to vote for Curtis Strong, the Constitution Party candidate for Governor, because he wasn’t on the ballot. But under the terms of the initiative, it would seem South Dakota could not prevent anyone from voting for Strong at either the primary or the general, and therefore would be required to provide write-in space.

The initiative says the two candidates who get the most votes appear on the November ballot, but it does not say what happens if only one person is on the primary ballot. Presumably that one candidate would again run in November.

Current law defines qualified party to be one that submits a petition, or which polled 2.5% of the vote for Governor in the last election. If this initiative passed, the Democratic and Republican Parties would no longer be ballot-qualified. Presumably if the initiative passed, the legislature would amend the definition of “party” to be based on the group’s vote for President at the last election. Alternatively, the definition of “party” might be based on the number of registered voters in a party. But then the state would be forced to let voters register into parties that had never before been qualified, and the state would need to tally these registrations. South Dakota does tally the number of voters in parties that are not now qualified by which were ballot-qualified in the preceding few years.

South Dakota parties now elect precinct party officials at the primary, but this initiative would eliminate such public elections. For that reason alone, it seems likely the two major parties will campaign against this initiative if it gets on the ballot. Thanks to Andy Jacobs for the link.