On September 19, seven states filed an amicus curiae brief with the U.S. Supreme Court in Judd v Libertarian Party of Virginia, 13-231. This is the case over Virginia’s ban on out-of-state circulators for candidate petitions. The lower courts in this case had invalidated the residency requirement, and Virginia is hoping the U.S. Supreme Court will hear its appeal. The seven states agree with Virginia.

The amicus was organized by the Oklahoma Attorney General, and co-signed by the Attorneys General of six other states, Hawaii, Idaho, Nebraska, Ohio, South Dakota, and Wyoming. Except for the Hawaii and Wyoming Attorneys General, all are Republicans.

Ironically, Oklahoma and Nebraska already repealed their bans on out-of-state circulators, and Hawaii never had such a ban. The Idaho and Wyoming bans aren’t being enforced because those two states are in circuits that struck down such bans. The Ohio ban is under court attack.

The amicus purports to list all the Appellate decisions on the issue, yet does not even mention the Seventh Circuit, which was the first circuit to strike down circulators bans. The Seventh Circuit decision, Krislov v Rednour, 226 F 3d 851 (2000), said, “To the extent this law is designed to serve a third interest – preventing citizens of other States from having any influence on Illinois elections – we question its legitimacy. Such laws are harmful to the unity of our Nation because they penalize and discriminate against candidates who wish to associate with and utilize the speech of non-residents. Allowing citizens of the other forty-nine States to circulate petitions increases the opportunity for the free flow of political ideas.” Illinois asked the U.S. Supreme Court to reverse this decision, but the U.S. Supreme Court refused to hear the Illinois case.

The amicus equivocates as to the purpose of the ban on out-of-state circulators. The first sentence says the states have an interest in being shielded from “fraudulent behavior”, but page two says “a major fear of citizens in states with ballot initiatives is that out-of-state special interests will come into their state.” Page three says the initiative at times has “been transformed into a big money industry.” Obviously, out-of-state special interests with sufficient money can qualify initiatives regardless of any residency requirement for circulators.

The amicus insults the courts that have struck down residency requirements, saying twice (on pages six and nine) that these courts “blindly” followed each other. The amicus asserts that California and the District of Columbia both have residency requirements, but both places have this year repealed residency requirements.

When Arizona lost a similar case in 2008, it asked the U.S. Supreme Court to overturn the decision, Nader v Brewer. Thirteen states signed an amicus brief on Arizona’s side, but the U.S. Supreme Court still refused to hear the case. The fact that thirteen states signed an amicus in 2008, but only seven states signed this amicus, is encouraging.

On September 24, James Hall, an independent candidate for U.S. House in Alabama’s upcoming special election, First District, submitted 2,835 signatures. The petition deadline is September 24. The requirement is 5,938 valid signatures. Hall has a lawsuit pending, arguing that because the time for collecting signatures in this special election is so much shorter than in a regular election, therefore the state would reduce the petition requirement. He is citing several precedents that support his claim, including one from the Eleventh Circuit in 1982 called Citizens Party of Georgia v Poythress (Alabama is in the Eleventh Circuit). In that 1982 Georgia case, the normal petitioning period of 180 days was curtailed to only 50 days by late redistricting, so the Eleventh Circuit remanded the case back to the U.S. District Court and told the U.S. District Court to give some relief. The U.S. District Court then extended the deadline. Other courts in similar circumstances have reduced the number of signatures, to compensate for the shorter period for collecting signatures.

The Massachusetts Joint Elections Committee will hear HB 639 on October 16, at 2 p.m., in Room 2A of the Statehouse. The bill makes it more difficult for an unqualified party to apply to have its registrations tallied. Massachusetts law says that any group that wishes to become a qualified party may do so if it persuades at least 1% of all the registered voters to join the party, as shown on voter registration forms.

The bill says that groups that file to have their registrations tallied must submit a petition of 500 names. Also, if a group hasn’t attained at least one-fourth of 1% after two years, all its registrants are converted to independent voters.

One-fourth of 1% would be approximately 11,000 voters. Massachusetts has no ballot-qualified parties currently, except for the Republican and Democratic Parties. The only unqualified party that has one-fourth of 1% of the registrants is the Libertarian Party. The bill is sponsored jointly by Representative Angelo Scaccia (D-Boston) and William Galvin, Secretary of the Commonwealth.

It is disappointing that Secretary Galvin is asking the legislature to make this restrictive change, when there are so many badly-needed ballot access improvements in Massachusetts that he is ignoring. Massachusetts law doesn’t permit substitution for any minor party or independent candidate petitions. This is because in 2012, the Massachusetts Supreme Court interpreted the law to forbid substitution. Thus, an independent presidential candidate cannot start petitioning until he or she has chosen the vice-presidential running mate. This is a serious problem that ought to be addressed by the Secretary. In 1980, independent presidential candidate John B. Anderson did not choose his vice-presidential running mate until August 27, so if the current law had been in effect in 1980, Anderson could not have had his actual vice-presidential running mate on the November ballot.

Another problem the Secretary is ignoring is that the deadline for creating a new ballot-qualified party by registration is in November of the odd year before the presidential election. By all precedents, this deadline is unconstitutionally early, especially since the party registration method is the only means by which a newly-qualifying party can get on the ballot and have freedom to choose its presidential and vice-presidential nominees in the late spring or summer of the election year.