On May 6, the Ninth Circuit issued a six-page opinion in Lindsay v Bowen, 13-15085, that manages to obscure, rather than illuminate, the issue of when and how a state election official can determine the constitutional eligibility of presidential candidates. The decision upholds the Secretary of State’s decision to bar one of the Peace & Freedom Party’s presidential candidates from the party’s presidential primary.

In 2012, the Peace & Freedom Party submitted a list of presidential candidates for placement on the party’s presidential primary ballot. The Secretary of State refused to list Peta Lindsay because she was under age 35. There is no California statute that gives the Secretary of State any authority to decide which presidential candidates are constitutionally eligible. There was no declaration of candidacy for Lindsay or any other presidential candidate to sign.

During 2008 and 2012, when challenges to the eligibility of John McCain and Barack Obama were made, the California Secretary of State said that she had no authority to evaluate the constitutional qualifications of presidential candidates. The only distinction made in the Ninth Circuit opinion between those instances, and the Lindsay instance, is that Lindsay admitted she didn’t meet the constitutional qualifications. One wonders, then, how the case would have turned out if Lindsay had insisted that she was old enough. One wonders if the Secretary of State would have accepted her claim at face value, or whether the Secretary of State would have sought Lindsay’s birth certificate.

The opinion makes no reference to Fuller v Bowen, in which the State Court of Appeals ruled that candidates for the legislature cannot be barred from the ballot even if they admit they don’t meet the constitutional qualifications. In that case, candidates who admitted they didn’t comply with the state constitutional residency requirement for legislature (a one-year duration of residency requirement) still were allowed on the ballot.

At the Ninth Circuit hearing, one of the judges asked the attorney for the Secretary of State how the Secretary knew that Lindsay was under age 35. The response was that the Secretary of State, or one of her employees, happened to see a newspaper story that mentioned her age.

The May 6 Sacramento Bee has this op-ed by Mike Feinstein, former Mayor of Santa Monica, on how California’s top-two system has injured the state’s minor parties.

On May 5, the U.S. Supreme Court refused to give injunctive relief to the Ohio Libertarian Party, in the ballot access lawsuit involving the party’s primary ballot and its statewide candidates. Justice Clarence Thomas had received the request on May 2, and he did refer the matter to the other justices, but no relief was forthcoming.

The party had also asked Justice Elena Kagan for relief earlier on May 2, but she denied relief without forwarding the matter to any other justice. The issue is the law that requires petitioners to show on each petition blank who the employer of the circulator is. The party’s statewide primary petitions had been accepted by the Secretary of State even though they didn’t have that information. But when someone challenged the petitions, the challenge succeeded.