As has been reported already, this year the Michigan Republican Party intervened in court to keep Gary Johnson off the ballot because his name appeared on the 2012 Republican presidential primary ballot. He had tried to withdraw but his withdrawal form was faxed in at 4:03 p.m. and the deadline was 4 p.m.

Back in 1980, the Republican Party took a different position. This has only come to light on September 20, when the briefs from a 1980 ballot access case in the Michigan Supreme Court were retrieved from storage. That case is Michigan Republican State Central Committee v Austin, no. 51492 in the State Court of Appeals, and 65178 in the Michigan Supreme Court.

In 1980, the deadline for someone to withdraw from the Republican presidential primary was March 21 at 4 p.m. Anderson, who did not want to be on the Republican presidential primary ballot, did not withdraw until April 24, in a letter that the Secretary of State did not receive until April 28. In 1980, the Michigan Republican Party wanted Anderson to be permitted to withdraw from the primary ballot. The Republican Party even filed a lawsuit to force Michigan to remove Anderson from the primary ballot. The party’s brief acknowledges that Anderson was late to withdraw, but the brief says he should be allowed to withdraw anyway, because “If one accepts the interpretation of the Attorney General then one is forced to conclude that the (withdrawal deadline) statute will not pass constitutional muster. In the first place, the deadline for filing is the same as the deadline for withdrawal so that, in effect, there is actually no time period for withdrawal. Second, the statute requires that the ballot be permanently fixed approximately two months before the election. In a volatile Presidential race, such a time constraint is unreasonable.”

Thus, the Republican Party in 1980 argued that Anderson’s withdrawal should be permitted even though it was not received until 38 days past the withdrawal deadline, yet in 2012 it argued that Johnson’s withdrawal request should be denied because it was three minutes too late. The 2012 withdrawal deadline was December 9, 2011, which is 103 days earlier than the 1980 withdrawal deadline.

The U.S. Supreme Court will consider whether to hear Arizona v Inter Tribal Council at its October 5 conference. This is the lawsuit, formerly named Gonzalez v Arizona, over whether Arizona can require extra information when individuals who are registering to vote use the federal postcard voter registration form. The federal form does not ask for proof that the applicant is a U.S. citizen (other than the applicant’s signature, signed under penalty of perjury). Arizona law requires that such proof be attached when individuals register to vote. The Ninth Circuit had ruled that Arizona is not free to (in effect) amend the federal form with additional requirements. In the U.S. Supreme Court, the case is 12-71. Thanks to Thomas Jones for this information.

When the Ninth Circuit heard this case, one of the three judges was retired U.S. Supreme Court Justice Sandra Day O’Connor. Occasionally retired U.S. Supreme Court Justices sit on U.S. Court of Appeals panels.