On June 14, Texas Governor Rick Perry signed SB 817, an election law bill that the Libertarian Party had suggested. The bill lets ballot-qualified parties that nominate by convention hold their state convention in April, instead of June. Also it lets convention parties nominate candidates for public office even if those candidates are party officers (primary-nominating parties still can’t nominate people who are party officials). Thanks to Jim Riley for this news.
Ariel Chesler has this article on Huffington Post. From his own personal experience, he knows that many New Yorkers don’t realize that candidates can’t get on ballots unless voters are willing to sign petitions for them. Especially telling is one voter, who, when asked to sign, said, “Let the candidates get themselves on the ballot!”
The problem is surely much worse in states such as Alabama, Georgia, and North Carolina. In those states, candidates seeking a place on a primary ballot don’t need petitions. Also those states don’t have the statewide initiative process. So voters are even less aware of the importance of petitioning, because the only groups that petition are minor parties and independent candidates.
New Jersey State Senator Shirley Turner’s bill to provide that vacancies in the U.S. Senate must be filled (by gubernatorial appointment) with a member of the same party as the ex-Senator is logically and constitutionally flawed. The bill, SB 2857, says “The appointee shall be from the same political party as the person vacating the office and shall have been a member of that political party continuously for a period of four consecutive years immediately prior to the appointment.”
The first flaw is that the former U.S. Senator might have been an independent, or the nominee of an unqualified party. Yet the bill seems not to account for that possibility. There are currently two independent U.S. Senators in the Senate now, so this omission seems thoughtless.
The second flaw is that the bill would exclude any appointee who had not been a registered voter for the preceding four years. Yet the Ninth and Tenth Circuits have ruled that states cannot require congressional candidates to have been a registered voter, because that adds to the constitutional qualifications to hold office in Congress, and states don’t have the power to add to the qualifications listed in Article One of the U.S. Constitution.
The bill is also vague about whether the ex-Senator’s party affiliation on the day he or she resigns controls, or whether the ex-Senator’s party affiliation on the day he or she was last elected controls.
On June 17, the U.S. Supreme Court issued an opinion in Arizona v Inter Tribal Council of Arizona, 12-71. The most important consequence of this decision is that the Elections Clause in Article One of the U.S. Constitution has been strengthened. The “Elections Clause” only relates to Congressional elections. It says, “Section 4. The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
Justice Scalia, writing for the 7-2 majority, said that while it is true that in most disputes between federal and state authority, there must be a careful balancing of federal power to allow as much state power as possible, this is not true for the Elections Clause. Page eleven of his decision says, “There is good reason for treating Election Clause legislation differently. The assumption that Congress is reluctant to pre-empt does not hold when Congress acts under that constitutional provision, which empowers Congress to ‘make or alter’ state election regulations…the federalism concerns underlying the presumption in the Supremacy Clause context are somewhat weaker here. Unlike the States’ ‘historic police powers’, the States’ role in regulating congressional elections – while weighty and worthy of respect – has always existed subject to the express qualification that it ‘terminates according to federal law.'”
This finding will be useful in any current and future lawsuits over discriminatory ballot access laws involving congressional elections. The U.S. Supreme Court already ruled in Cook v Gralike, 531 U.S. 510 (2001), that the Elections Clause was intended by the founding fathers to prevent the states from “favoring or disfavoring a class of candidates.” Cook v Gralike struck down Missouri election laws that required printing disparaging ballot labels on the ballot for candidates who did not favor a U.S. Constitutional amendment for term limits. The Arizona decision will help to win the current California lawsuit, Chamness v Bowen, challenging unequal ballot access labels for candidates for Congress. The Arizona decision helps because it gives new force and precedential power to Cook v Gralike, a decision that has often been overlooked even though it was unanimous.
Six justices agreed with Scalia that the Elections Clause has extra power, relative to most federal laws that seem to deprive states of some power relative to the federal government. Justice Anthony Kennedy disagreed with that point, yet he still voted for the outcome.
As to the actual dispute itself in the Arizona case, the issue was whether Arizona can require additional information from voters who use the federal voter registration postcard form, concerning proof of citizenship. The congressional law on voter registration, which created a federal voter registration form, does not ask for proof of citizenship other than a signature over penalty of perjury. Arizona wanted to reject the federal forms if the registrant did not answer extra questions and provide proof of citizenship. Ostensibly, Arizona lost the June 17 opinion; the decision says the state must accept the federal forms as they are. But the decision also says that Arizona has a legal right to request the federal government to give it permission to add extra questions. The decision implies that if Arizona asks the federal government to add the extra questions, the federal government must give it that permission, so if Arizona is stubborn about this issue, the state may win the relief it sought eventually anyway. This outcome is possible because the federal 1993 voter registration law itself gives states permission to ask the federal government to alter the form.
The reason that Arizona has a strong likelihood of forcing the federal government to allow it to add the extra questions, if it requests that, is a separate section of the U.S. Constitution, Article One, Section Two, says state control voter qualifications for their own state legislatures and those voter qualifications for Congress must match the qualifications for state legislative elections. If Arizona pursues this, it would have to persuade the federal Election Administration Commission that it needs the extra questions to enforce its right to prevent non-citizens from voting.
A new political party is petitioning for a place on the South Carolina ballot. Although it uses the name “American Party”, it is intended to be a centrist, moderate party. See this story. Thanks to Scott West for the link.
