Hearing Set in Challenge to Ohio Law That Requires Independent Candidate Petitions to be Completed Within One Year

A U.S. District Court will hold a hearing on March 19 in Duncan v Husted, southern district, 2:13cv-1157. This is a case that challenges the 2013 Ohio law that said independent candidate petitions must be completed within one year. The petitioning candidate sets his own one-year period.

Richard Duncan, the plaintiff, has been an independent candidate for President in each of the last two elections. Both times, he got on the ballot in his home state, Ohio, and did not petition in any other state. Both times, he collected all 5,000 signatures himself. He argues that he intends to do the same in 2016, and that it is a point of pride that he collects all his own signatures. He doesn’t need to spend any money on his petition drives, and he argues that it takes him longer than one year to collect the signatures. If he is forced to complete the petition within one year, he would be required to hire paid circulators, and that would dilute his message that money should not be so important in elections.

The state filed a brief on February 21. The state did not mention any state interest in limiting the petitioning period to one year. Instead, it just said that two U.S. Supreme Court decisions, and one 7th circuit precedent, make it obvious that a one-year petitioning period is constitutional. Ohio cites Jenness v Fortson, the 1971 decision that upheld Georgia’s ballot access laws for independent candidates and the nominees of unqualified parties. Georgia limited petitioning to the period six months before the deadline. But in that case, the Socialist Workers Party candidates (who were the only plaintiffs) did not specifically challenge any details of the petitioning process. Instead, the plaintiffs’ only argument was that they should not be required to submit any petition, because Democrats and Republicans seeking a place on the primary ballot didn’t need any petition.

The state also cites American Party of Texas v White, a 1974 U.S. Supreme Court decision that upheld Texas ballot access laws. But the rationale for the Texas starting date limitation (petitioning couldn’t start until the day after the primary) was that the state didn’t want anyone who had voted in a primary to be able to sign such a petition. No other state forbids primary voters from signing a petition for a new party or an independent candidate, so the Texas rationale doesn’t apply to Ohio or any of the other 48 states.

Finally, the state cites Nader v Keith, a 7th circuit opinion which denied injunctive relief against the Illinois June petition deadline, but did not settle the constitutionality of the deadline. Furthermore, independent candidate Ralph Nader did not complain about Illinois’ 90-day period specifically; he only complained about the deadline.

There are no precedents on the specific point of whether a state can tell a candidate that he or she can choose any petitioning period (as long as it respects the deadline), and yet the candidate must complete the petition in a set number of days.

Duncan also points out that Ohio does not limit the length of the petitioning period for candidates seeking to get on the primary ballot, and argues that the state is violating equal protection. The state responds that independent candidates and candidates in a primary are not similarly situated.

Challenges Filed to Ohio Libertarian Party Primary Petitions for Statewide Office

On March 4, a hearing will be held to determine if the Ohio Libertarian Party primary petitions for Governor, Lieutenant Governor, and Attorney General should be invalidated. Elections officials had already determined the petitions have enough valid signatures. The requirement for these petitions is 500 signatures, and any registered voter who didn’t vote in another party’s primary in 2012 can sign. However, there are restrictions on who can circulate such petitions. Out-of-state circulators can work on these petitions, but if the circulator is an Ohio resident, he or she must not have voted in the primary of another party. See this story. UPDATE: here is another story. The first version of this post said the hearing would be March 3, but the hearing was moved to March 4 due to weather.

Two Former Constitution Party Candidates File in Major Party Primaries in Maryland

Michael Peroutka, the Constitution Party’s presidential nominee in 2004, has filed in the Republican primary to run for Anne Arundel County Council, district five. Peroutka lives in Pasadena, Maryland.

David Whitney, a Constitution Party’s nominee for Maryland House of Delegates in 2006, has filed to run for the same office, and in the same district, but he filed in the Democratic primary. Whitney lives in Annapolis. In 2006, when he ran for the Maryland legislature as a Constitution Party nominee, he got 5.1% of the vote in a race that had both major parties also running.

The Constitution Party was not on the Maryland ballot in 2012. It is still free to get on the ballot in 2014, but that would require 10,000 valid signatures by August 4.

Illinois Bill for a Top-Two System

Illinois Representative Mike Fortner (R-West Chicago) has introduced HB 5913, which would establish a top-two primary in Illinois. The bill, as introduced, seems to include the presidential primary. If it does, then in November 2008, the only two presidential candidates who would have been on the ballot would have been Barack Obama and Hillary Clinton. Illinois already has an open primary, and any voter was free to choose either the Democratic, Republican, or Green primary ballot in Illinois in 2008. Obama received 1,318,234 votes; Clinton received 667,930; John McCain placed third with 426,777 votes.

Illinois has the earliest primary (for congress and state office) of any state except Texas. Candidates in Illinois primaries for 2014 were required to have filed on December 2, 2013. If Illinois had a top-two system, all routes to the November 2014 ballot would be closed off in early December 2013 (except primary write-in candidates could file a declaration of write-in candidacy in January 2014). Under current law, independent candidates and the nominees of unqualified parties can petition onto the November 2014 ballot by June 23, 2014, but that route would be blocked off if HB 5913 passed.

HB 5913 appears to prohibit counting write-in votes in November. It says no candidate can be certified for the November election except the two who came in first and second in the March primary. So even though the bill does not delete write-in space from the November ballot, it appears to block anyone from filing as a declared write-in for November.

February 2014 Ballot Access News Print Edition

Ballot Access News
February 1, 2014 – Volume 29, Number 9

This issue was printed on white paper.


Table of Contents

  1. ELEVENTH CIRCUIT DECISION WILL HELP BALLOT ACCESS IN GEORGIA AND ALABAMA
  2. OHIO VICTORY
  3. COLORADO VICTORY
  4. MICHIGAN SOCIALIST PARTY WINS PARTIAL PROCEDURAL VICTORY
  5. SUPREME COURT ELECTION LAW NEWS
  6. ALABAMA TRIES TO DERAIL BALLOT ACCESS LAWSUIT
  7. NORTH CAROLINA US HOUSE SEAT TO REMAIN VACANT ALL YEAR
  8. 2012 ELECTION RETURNS BOOK PUBLISHED
  9. CONGRESS
  10. BALLOT ACCESS BILLS
  11. NEW MEXICO SUPREME COURT WON’T HEAR BALLOT ACCESS CASE
  12. NUMBER OF SIGNATURES FOR INDEPENDENT CANDIDATE FOR U.S. HOUSE IN 2014
  13. 2014 PETITIONING FOR STATEWIDE OFFICE
  14. GARY JOHNSON MUST RE-FILE LAWSUIT AGAINST DEBATES COMMISSION
  15. GALLUP FINDS ONLY 51% OF PUBLIC IDENTIFIES WITH MAJOR PARTIES
  16. NADER WITHDRAWS $1,100,000 FROM BANK THAT HELPED HIS BALLOT ACCESS CHALLENGERS
  17. 1787 PARTY WILL PETITION IN TEXAS
  18. TEXAS DEMOCRATS HELP GREEN AND LIBERTARIAN PARTIES
  19. SUBSCRIBING TO BAN WITH PAYPAL